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US: “unlawful presence” policy appeal dismissed

The way in which unlawful presence is calculated in the US has returned to the pre-2018 system following the Department of Homeland Security’s motion to dismiss its own appeal against an enjoinment of the Trump administration’s unlawful presence policy.

unlawful presenceCritics argued that the government's policy put students at risk due to clerical errors. Photo: Pixabay

65 higher education institutes challenged the policy in court

The policy change would have made it easier to place international students in the US under an “unlawful presence” status – leaving them open to three and even 10-year bars from the country for violations of status that in many cases they had no way of knowing had been committed.

“We expect the administration to try again and enact a substantially similar flawed policy through regulation”

 Previously, US District judge, Loretta Biggs, issued a decision permanently enjoining the new unlawful presence policy, which DHS appealed before asking for the case to be dismissed.

According to NAFSA, calculations will now be based on the 2009 policy where the “individuals admitted for the duration of status do not begin accruing unlawful presence until an immigration judge finds a status violation in the course of an immigration proceeding, or an immigration officer finds a violation of status in the course of an application for an immigration benefit”.

Institutions have challenged the legislation for the past two years arguing that it put well-intentioned international students at risk of being banned from the US due to mistakes and administrative errors.

“Through their attempt to revise the unlawful presence policy, the administration sought to enact an ‘invisible wall’ that would have made the lives of our international students more precarious and substantially undermined our nation’s competitiveness in attracting international students and scholars,” said Jane Fernandes of Guilford College, one of 65 higher education institutes that challenged the policy in court.

“The government’s decision to fold and not pursue an appeal represents a small step towards restoring our nation’s role as a leader in training international talent,” she continued.

“While we expect the administration to try again and enact a substantially similar flawed policy through regulation, these developments represent an important victory for international students and scholars; and the institutions that welcome them.”

The President’s Alliance on Education and Immigration added that it was “extremely gratified” by the development and expressed “deep appreciation” for its members who were involved in the litigation.

“The Presidents’ Alliance is extremely gratified by this development and we express deep appreciation to our members who served as plaintiffs in the litigation… and the 65 higher education institutions and system Board that signed on as amici,” it stated.

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