A federal court in North Carolina issued a permanent injunction on February 6, blocking the Trump administration’s move to implement a new “unlawful presence” policy that could have seen international students barred from reentering the United States on effective technicalities. Haverford College is one of the plaintiffs in the case, Guilford College v. Wolf.
The concept of “unlawful presence” dates from a 1996 law that permits federal immigration authorities to deny reentry to people who have remained in the United States past the expiration of their visa. Individuals deemed to have been unlawfully present for more than 180 days may not reenter the country for three years, while those deemed to have been unlawfully present for more than 365 days may not reenter for ten years.
However, as the lawsuit notes, it can be difficult for people on non-fixed term visas, especially student visas, to determine when their authorization to remain in the United States expires.
Prior to the Trump administration, individuals holding educational visas would only begin to accumulate days of unlawful presence after a formal determination by an immigration judge or a U.S. Citizenship and Immigration Services (USCIS) officer. However, in 2018, USCIS announced a change where unlawful presence would accumulate retroactively from the date at which the agency determined the overstay first began.
Educational institutions across the country protested the new policy, arguing that it would leave international students vulnerable to being barred from reentry based on minor violations, such as inadvertently working more hours than permitted.
In December 2018, over 65 colleges and universities signed an amicus brief in support of the lawsuit challenging the change to the unlawful presence rule.
“The USCIS’s new ‘backdating’ rule introduces considerable uncertainty into the calculation of unlawful presence and needlessly exposes international students to devastating reentry bans,” the schools wrote in the amicus brief, adding that the “new rule will harm international students and scholars, as well as the institutions which host them.”
The amicus brief is one of several efforts by the Presidents’ Alliance on Higher Education and Immigration challenging the Trump administration’s immigration and citizenship policy. Wendy Raymond, the president of Haverford College, is a member of the Alliance.
Judge Loretta C. Biggs of the U.S. District Court for the Middle District of North Carolina granted the plaintiffs a temporary injunction in May 2019, halting the federal government from enforcing the modified unlawful presence rule.
After hearing arguments from both sides, Judge Biggs ruled against the government in February, finding that the policy change was “procedurally and substantively defective” and permanently blocking USCIS from enacting it.
In a statement, President Raymond spoke in support of the injunction. “International students and scholars came to the United States to study relying on a promise that our nation made to treat them fairly and transparently. The administration’s unlawful presence policy belied that promise, placing our students at risk of serious immigration consequences. I laud and commend Judge Biggs’ decision for the certainty and stability that it brings for our students and campuses.”
The administration may appeal Judge Biggs’s decision. Similar nationwide injunctions against President Trump’s immigration agenda have been overturned by the Supreme Court, putting the future of Haverford’s victory into question.
Natasha Weisz, Coordinator of International Affairs, declined to comment on the effect of the policy on Haverford students, citing the ongoing lawsuit.