IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
GUILFORD COLLEGE, GUILFORD
COLLEGE INTERNATIONAL CLUB,
THE NEW SCHOOL, FOOTHILL-DE
ANZA COMMUNITY COLLEGE
DISTRICT, and HAVERFORD COLLEGE,
Plaintiffs,
Civil Action No.: 18-891
v.
COMPLAINT
KIRSTJEN NIELSEN, U.S.
DEPARTMENT OF HOMELAND
SECURITY, L. FRANCIS CISSNA, and
U.S. CITIZENSHIP AND IMMIGRATION
SERVICES,
Defendants.

COMPLAINT
Plaintiffs Guilford College, Guilford College International Club, The New School,
Foothill-De Anza Community College District, and Haverford College bring this Complaint
against Defendants Kirstjen Nielsen, in her official capacity as Secretary of Homeland
Security; the U.S. Department of Homeland Security (“DHS”); L. Francis Cissna, in his
official capacity as Director of U.S. Citizenship and Immigration Services; and U.S.
Citizenship and Immigration Services (“USCIS”). Plaintiffs allege as follows.
INTRODUCTION
1.

The United States is a center of global education. Because many of the world’s

leading colleges, universities, and research institutions are located here, more than a million
individuals travel to the United States each year to study and teach. On August 9, 2018,
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 Defendants adopted a new policy that is purposefully designed to impose three- and ten-year
bars to reentry on tens of thousands of these individuals. This policy is a massive
reconfiguration of the immigration laws relating to higher education.
2.

In 1996, Congress created the concept of “unlawful presence” and established

a penalty for individuals who are “unlawfully present” in the United States. An individual
who is unlawfully present for more than 180 days is barred from reentering the United States
for a period of three years. An individual who is unlawfully present for a year or more is
barred from reentering for ten years. These reentry bars are typically not subject to any
judicial review. And, because these reentry bars preclude an individual from lawfully
entering the United States for any purpose for a lengthy period of time, they fundamentally
disrupt the personal and professional lives of those affected, as well as the missions of
affected organizations and institutions.
3.

In 1997, the United States adopted a clear policy governing the implementation

of this statute. Recognizing that the determination of whether an individual is “unlawfully
present” in the United States is complex and will often turn on administrative discretion, the
United States established objective rules that provided visa holders notice. If the authorized
period of stay ended on a date certain on which the individual was required to leave the
country, unlawful presence began following that date. And for all individuals, unlawful
presence began the day after either a government official or immigration judge made a
determination that the individual was out-of-status. This provided well-intentioned
individuals an opportunity to cure their circumstances and remain in the country—or to
depart the country within 180 days. Either way, individuals acting in good faith had an
opportunity to avoid imposition of a three- or ten-year reentry bar.
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 4.

The United States reaffirmed this policy for more than two decades, including

via a May 2009 Policy Memorandum. See Ex. C.
5.

The vast majority of international students1 enter the country on F or M visas,

while some enter on J visas. Many international researchers, scholars, and professors at
higher education and research institutions enter the country on J visas for exchange visitors.
In general, when F, J, or M visa holders enter the country, they are not supplied with a date
certain on which they must depart. Rather, their visas are valid for the “duration of status,” or
“D/S.”
6.

For more than two decades, the United States has held that the unlawful-

presence clock for these individuals begins on the day after a government official or
immigration judge adjudicates the individual as out-of-status. That is, unlawful presence
begins at the point that an F, J, or M visa holder is provided unequivocal notice that the
government believes that the individual is out-of-status.
7.

This policy provided essential notice to F, J, and M visa holders. Technical or

inadvertent errors can render an individual unwittingly out-of-status. Moreover, whether an
individual is in-status often turns on complex issues subject to varying interpretations, and
those adjudications are often at the discretion of USCIS officials.
8.

On August 9, 2018, Defendants issued a new policy memorandum (August

2018 Policy Memorandum, Ex. A). The August 2018 Policy Memorandum fundamentally
alters the calculation of unlawful presence for F, J, and M visa holders.
9.

Now, when a government official or immigration judge determines that an F, J,

1

By “international students,” we refer to individuals who are neither U.S. citizens nor
lawful permanent residents and who, prior to starting their education, typically resided
outside the United States.
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 or M visa holder is out-of-status, the unlawful-presence clock will be backdated to the day on
which Defendants conclude that the visa holder first fell out-of-status. The immigration
system is beset with processing delays, and many of these status determinations are made
when an individual is applying for new immigration benefits. Thus, the new policy’s use of a
backdated unlawful-presence clock will render tens of thousands of F, J, and M visa holders
subject to three- and ten-year reentry bars without any opportunity to cure.
10.

This policy is intentionally designed to impose tens of thousands of reentry

bars on F, J, and M visa holders each year.
11.

This policy, accordingly, will result in the three- or ten-year banishment of

untold numbers of international students and exchange visitors acting in good faith.
12.

The imposition of a reentry bar on an international student or exchange visitor

has a drastic effect on her life. It will preclude her from completing her degree program,
deprive her of employment opportunities, and exclude her from friends and family living in
the United States. For those students and visitors who have chosen to teach or work in the
United States, imposition of a three- or ten-year reentry bar will fundamentally and
irreparably injure their lives. It also imposes a financial harm on institutions in terms of lost
tuition dollars and local communities in terms of foregone discretionary expenditures by bias
holders.
13.

This policy thus drastically injures holders of F, J, and M visas. Moreover, by

disrupting the ability of these individuals to continue studying at their schools—or
continuing their research, teaching, or other scholarly pursuits—the August 2018 Policy
Memorandum fundamentally upsets student-school and employee-school relationships. This
results in concrete, significant harms to colleges and universities, including through the loss
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 of irreplaceable community members, loss of tuition dollars, and loss of trained employees.
14.

This new policy is unlawful for several reasons.

15.

To begin with, Defendants failed to undertake the notice and comment required

in these circumstances. Defendants did not publish advance notice of this rule in the Federal
Register, did not provide reasoned responses to public comments, did not undertake the
required Regulatory Flexibility Act analysis, and did not comply with the whole host of
requirements imposed by the Administrative Procedure Act (“APA”).
16.

The policy is also arbitrary and capricious. Defendants assert that the advent of

a computer database in August 2003 justifies the policy change. But Defendants had
previously reaffirmed this policy many years after that computer database came online. And
the policy is arbitrary and capricious for several other reasons. For example, the August 2018
Policy Memorandum relies on erroneous data and erects arbitrary distinctions among similar
classes of individuals.
17.

The policy violates the statutory text. In 1996, Congress created a new concept

of “unlawful presence.” As Defendants have said in prior memoranda, “unlawful presence”
must be understood as distinct from the concepts that previously existed. Because
Defendants’ new policy is at odds with the statutory text, it is unlawful.
18.

The policy violates protections guaranteed by the Due Process Clause. The

August 2018 Policy Memorandum will result in the imposition of three- and ten-year bars on
individuals without notice or the opportunity to cure. The Constitution forbids such
unforeseeable and arbitrary government conduct.
19.

For these reasons and others, the Court should vacate the August 2018 Policy

Memorandum, declare it unlawful, and enjoin Defendants from applying it.
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 PARTIES
Plaintiffs
20.

Plaintiffs in this case include multiple leading higher education institutions.

Each school counts as students, employees, and exchange visitors a significant number of
individuals who are present in the United States based on an F, J, or M visa.
21.

Plaintiff Guilford College is a private, liberal arts college in Greensboro,

North Carolina. Guilford was originally founded in 1837.
22.

Guilford currently enrolls approximately 26 students on F-1 visas.

Additionally, Guilford has approximately six alumni F visa holders on post-completion
optional practical training.
23.

Guilford is required to terminate student I-20s when students fall out-of-status.

In view of the August 2018 Policy Memorandum, some I-20 terminations will result in
students being saddled with a three- or ten-year reentry bar.
24.

Plaintiff Guilford College International Club is a student association at

Guilford College.
25.

Guilford College International Club is an unincorporated, voluntary

association, and its members include Guilford College students present in the United States
on F-1 visas. It has two or more members, and they are joined together by mutual consent for
a common, nonprofit purpose.
26.

Guilford College International Club has regular meetings of its members.

27.

Guilford College International Club counts as among its mission the advocacy

for the rights of its international student members within the United States.
28.

Plaintiff The New School is a private research university located in New York

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 City. The New School consists of the Parsons School of Design, the Eugene Lang College of
Liberal Arts, The New School for Social Research, the Schools of Public Engagement, and
the College of Performing Arts.
29.

More than 10,000 students are enrolled at The New School. Over 30 percent of

The New School’s students are international. The New School features one of the highest—if
not the highest—proportions of international students among all higher education institutions
in the Nation.
30.

Currently, The New School has among its community approximately 3,600

international students on F-1 visas.
31.

Many of The New School’s 3,600 international students have on-campus

employment—and are thus employees of The New School—consistent with the terms of the
F-visa regulations.
32.

The New School also has roughly an additional 900 F-1 alumni currently

completing optional practical training.
33.

The New School has approximately 100 students on J visas and roughly an

additional 38 J-1 scholars.
34.

Each year, The New School is obligated to terminate dozens of I-20s because

of identified status violations.
35.

In some (if not many) of these cases, the August 2018 Policy Memorandum

will result in the imposition of a three- or ten-year reentry bar.
36.

Recently, because of the August 2018 Policy Memorandum, a student of The

New School left the United States in order to take the correct action to regain her status but
subsequently took a semester-long leave of absence out of fear of accruing unlawful-7-

Case 1:18-cv-00891-CCE-JEP Document 1 Filed 10/23/18 Page 7 of 37

 presence time under the new policy. That fundamentally disrupted the student-university
relationship, and The New School lost tuition as a result. But for the August 2018 Policy
Memorandum, the student would not have stopped her education with The New School.
37.

Another student at The New School, a doctoral candidate, had an I-20 with a

program end date of June 30, 2018. This student has been at The New School since 2012.
Because of financial constraints, the student was unable to extend the I-20, as the Designated
School Officer was unable to determine that the student could support themselves. To avoid
accruing unlawful presence under the August 2018 Policy Memorandum, the student was
required to travel in order to restart the I-20, which came at significant cost.
38.

The August 2018 Policy Memorandum has caused The New School to change

its policies and practices regarding international students. For example, the new policy has
caused The New School to defer advising with respect to students’ change-of-status and
reinstatement applications. The institution is more likely to refer a student to an outside
immigration lawyer. That increases the costs to the students and imposes delay burdens on
The New School.
39.

Plaintiff Foothill-De Anza Community College District is a public district of

community colleges located in Cupertino, California. The district operates Foothill College
and De Anza College.
40.

Currently, the Foothill-De Anza Community College District has more than

2,500 international students on F-1 visas.
41.

Each year, the Foothill-De Anza Community College District is required to

terminate I-20s when it identifies that students are out-of-status. Under the August 2018
Policy Memorandum, many students identified as out-of-status will be subject to a three- or
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 ten-year reentry bar. That is because, when Foothill-De Anza Community College District
identifies a status violation, sometimes more than 180 days will have elapsed from the
underlying facts giving rise to that violation.
42.

Plaintiff Haverford College is a private, liberal arts college located in

Haverford, Pennsylvania. Haverford was founded in 1833. More than 1,300 students are
enrolled at Haverford.
43.

Haverford counts among its community approximately 148 students on F-1

visas. Haverford also has one student on a J visa.
44.

In addition, Haverford has approximately 17 alumni on F visas who are still in

the United States during a period of optional practical training.
45.

In response to the August 2018 Policy Memorandum, Haverford has changed

its practices regarding international students. It now makes different advising decisions. For
example, prior to the August 2018 Policy Memorandum, Haverford would provide its
students a range of advice regarding compliance with visa status. Following that
memorandum, Haverford more frequently advises its students to consult with outside
immigration lawyers, which imposes added burden and delay on students and Haverford
alike.
46.

In particular, as a result of the August 2018 Policy Memorandum, Haverford

recently was required to ask two international students to leave the campus based on
potential status violations that, prior to the new policy, would not have disrupted their
studies. This upset the crucial student-university relationship with these students and has
irreparably disrupted these students’ educational plans, and Haverford has lost tuition as a
result.
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 Defendants
47.

Defendant Kirstjen Nielsen is the Secretary of Homeland Security and

therefore the “head” of the Department of Homeland Security. 6 U.S.C. § 112(a)(2). Under
the Immigration and Nationality Act, she is charged with administering and enforcing the
federal immigration and nationality laws. 8 U.S.C. § 1103(a)(1), (3). She is sued in her
official capacity.
48.

Defendant Department of Homeland Security (“DHS”) is the executive

department charged with authority over federal immigration law (see 6 U.S.C. § 251) and an
“agency” within the meaning of the APA (5 U.S.C. § 551(1)).
49.

Defendant L. Francis Cissna is the Director of U.S. Citizenship and

Immigration Services and therefore the “head” of that agency (6 U.S.C. § 271(a)(2)). He is
sued in his official capacity.
50.

Defendant U.S. Citizenship and Immigration Services (“USCIS”) is a

component of DHS (6 U.S.C. § 271) and an “agency” within the meaning of the APA (5
U.S.C. § 551(1)). USCIS is the component of DHS that issued the August 2018 Policy
Memorandum.
JURISDICTION AND VENUE
51.

This Court has federal question jurisdiction over Plaintiffs’ complaint under 28

U.S.C. § 1331. It has the authority to issue declaratory and injunctive relief pursuant to 28
U.S.C. §§ 2201, 2202; 5 U.S.C. §§ 705, 706(1), 706(2)(A)-(D); and its general equitable
powers.
52.

The APA provides a cause of action for parties adversely affected by final

agency action when “there is no other adequate remedy in a court.” 5 U.S.C. § 704. That

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 condition is met in this case because the August 2018 Policy Memorandum is a “final agency
action” within the meaning of the statute and there is no other adequate remedy available in
any other court.
53.

Venue is proper in this district under 28 U.S.C. § 1391(e)(1) because

Defendants are officers or agencies of the United States and one or more Plaintiffs reside in
the district within the meaning of 28 U.S.C. § 1391(d).
FACTUAL BACKGROUND
Immigration for Higher Education and Research Institutions
Provides Innumerable Benefits to the United States
54.

Many of the world’s leading higher education and research institutions are

located in the United States. More than a million individuals travel to the United States each
year to study, research, or teach on F, J, or M visas.
55.

Most international visitors require a visa to be admitted to the United States.

Nearly all international students who travel to the United States from abroad are admitted via
an F, J, or M visa.
56.

An F visa authorizes an international individual to enter the United States on a

non-immigrant basis to pursue an educational program. Students on an F visa must be
enrolled at an institution that participates in the Student and Exchange Visitor Program
(SEVP).
57.

An M visa authorizes international individuals to study at a vocational or

technical school. Like those on F visas, students on an M visa must be enrolled at an
approved institution.
58.

Students on F and M visas come from every continent in the world except

Antarctica, with more than 229 countries and territories represented in the U.S. academic
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 community. See ICE, SEVIS by the Numbers: Biannual Report on International Student
Trends, 7 (Apr. 2018), goo.gl/d4gy2A.
59.

In March 2018, approximately 1.2 million individuals were present in the

United States on either an F or M visa. Id. at 3. Of these, approximately 400,000 students
were enrolled in a bachelor’s degree program, while nearly as many were seeking a Master’s
degree. Id. at 5.
60.

In March 2018, approximately 8,700 schools have been certified by SEVP as

eligible to enroll international students. Id. at 13.
61.

A J visa is a non-immigrant visa issued to individuals who participate in an

authorized “Exchange Visitor Program.” The U.S. Department of State has authorized more
than 1,500 academic institutions, for-profit and non-profit private sector organizations, or
federal, state, and local government entities to operate such a program. The vast majority of
these designated programs are accredited American institutions of higher education.
Participants in such programs include students, research scholars, professors, teachers,
physicians, au pairs, camp counselors, and several other categories of individuals.
62.

More than 300,000 J visas were issued in 2017.

63.

As of March 2018, around 210,000 individuals were present in the United

States on a J visa.
64.

Many U.S. colleges have determined that a robust community of international

students is essential to the educational mission for all students—domestic and international
alike. Domestic students gain critical new insights by living and studying with international
students. These diverse environments teach essential values of multiculturalism and
tolerance, breaking down stereotypes of the “other.” International students, similarly, learn
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 from their American counterparts, gaining new experiences and perspectives that will benefit
them for life.
65.

Recruiting leading international students, researchers, and academics to U.S.

schools is also crucial to ensuring that the United States retains its perch as the leader of the
academic world. Higher education institutions are at the forefront of developing critical new
technologies—in fields as diverse as healthcare, pharmaceuticals, computing, energy, and
transportation. This innovation ensures the United States’ status as the premier economic
global force, thanks in significant measure to contributions by international students.
66.

In the 2016 to 2017 school year, international students contributed nearly $37

billion to the U.S. economy and created or supported more than 450,000 jobs. See NAFSA,
NAFSA International Student Economic Value Tool, goo.gl/kN6gSb. International students
also contribute substantially to the economic health of the thousands of colleges and
universities at which they enroll and thus pay tuition. For many of these communities, the
higher education institution is the main engine or even sole guarantor of economic wellbeing.
“Unlawful Presence”
67.

In the 1996 Illegal Immigration Reform and Immigrant Responsibility Act

(“IIRIRA”), Congress introduced sanctions for non-U.S. persons who are “unlawfully
present” in the United States. The concept of “unlawful presence” had never previously
existed in U.S. immigration law.
68.

According to the statute, “an alien is deemed to be unlawfully present in the

United States if the alien is present in the United States after the expiration of the period of
stay authorized by the Attorney General or is present in the United States without being
admitted or paroled.” 8 U.S.C. § 1182(a)(9)(B)(ii).
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 69.

If an individual accrues more than 180 consecutive days (but less than a year)

of unlawful presence, the individual is barred from reentering the United States for a period
of three years. 8 U.S.C. § 1182(a)(9)(B)(i)(I). If the individual has been unlawfully present in
the United States for a year or more, the individual is barred from reentering the United
States for a period of ten years. Id. § 1182(a)(9)(B)(i)(II).
70.

When many categories of non-immigrants are admitted to the United States—

such as most individuals coming to the United States as tourists or to temporarily engage in
business—they are provided with a date certain on which their authorized period of stay
expires, according to the I-94 Record of Admission. In these circumstances, calculating
“unlawful presence” is relatively straightforward. If the individual stays after the specific
date authorized, the individual begins to accrue “unlawful presence” time.
71.

But most individuals admitted to the United States on F, J, and M visas are not

provided a date certain on which their authorized period of stay expires. Rather, they are
admitted for the “duration of status,” or “D/S.”
The Legacy Policy
72.

Since 1997, Defendants—and their predecessors, including the Immigration

and Naturalization Service—had adopted a consistent policy in practice for calculating
“unlawful presence,” including as it related to individuals admitted for a “duration of status.”
73.

In the August 2018 Policy Memorandum, Defendants explain the prior policy:

“foreign students and exchange visitors (F and J non-immigrants, respectively) who were
admitted for, or present in the United States in, duration of status (D/S) started accruing
unlawful presence on the day after USCIS formally found a nonimmigrant status violation
while adjudicating a request for another immigration benefit or on the day after an
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 immigration judge ordered the applicant excluded, deported, or removed (whether or not the
decision is appealed), whichever came first.” Ex. A at 1.
74.

INS issued a memorandum on September 19, 1997, entitled “Section

212(a)(9)(B) Relating to Unlawful Presence.” Ex. D. Written by Paul Virtue, then-Acting
Executive Associate Commissioner, this document is often referred to as the “Virtue Memo.”
75.

The Virtue Memo provides: “Unlawful presence does not begin to run from the

date of a status violation (including unauthorized employment). Unlawful presence for a
nonimmigrant may begin to accrue before the expiration date noted on the I-94, however, in
two circumstances: (1) when an immigration judge makes a determination of a status
violation in exclusion, deportation or removal proceedings, or (2) when the Service makes
such a determination during the course of adjudicating a benefit application.” Ex. D at 2.
76.

On May 6, 2009, USCIS issued an “Interoffice Memorandum” that it titled

“Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections
212(a)(9)(B)(i) and 212(a)(9)(c)(i)(I).” See Ex. C. That memorandum canvassed thenexisting policies regarding unlawful presence and recodified them into the Adjudicator’s
Field Manual.
77.

That memorandum provided: “Nonimmigrants Admitted for Duration of Status

(D/S). If USCIS finds a nonimmigrant status violation while adjudicating a request for an
immigration benefit, unlawful presence will begin to accrue on the day after the request is
denied. If an immigration judge makes a determination of nonimmigrant status violation in
exclusion, deportation, or removal proceedings, unlawful presence begins to accrue the day
after the immigration judge’s order. It must be emphasized that the accrual of unlawful
presence neither begins on the date that a status violation occurs, nor on the day on which
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 removal proceedings are initiated.” Ex. C at 25 (emphasis added).
The August 2018 Policy Memorandum
78.

On May 11, 2018, Defendants posted a memorandum (dated May 10, 2018)

indicating an intent to revise longstanding policy and legal interpretation regarding the
definition and calculation of “unlawful presence.” See Ex. B.
79.

On August 9, 2018, Defendants issued a Policy Memorandum titled “Accrual

of Unlawful Presence and F, J, and M Nonimmigrants.” The memorandum is designated as
PM-602-1060.1. It is attached as Exhibit A.
80.

Pursuant to this new policy, USCIS will start the unlawful-presence clock not

on the date that an individual on an F, J, or M visa is adjudicated as being out-of-status.
Instead, USCIS will backdate “unlawful presence” to the date on which the underlying facts
that gave rise to the status violation occurred.
81.

Thus, under the new policy, “[a]n F, J, or M nonimmigrant begins accruing

unlawful presence, due to a failure to maintain his or her status on or after August 9, 2018,
on . . . [t]he day after the F, J, or M nonimmigrant no longer pursues the course of study or
the authorized activity, or the day after he or she engages in an unauthorized activity.” Ex. A
at 4.
82.

This new policy imposes a non-discretionary duty on USCIS officers. It binds

and preordains their actions in all cases within the scope of the policy.
83.

The August 2018 Policy Memorandum asserts certain overstay rates as a basis

for reversing 21 years of policy. In particular, it asserts that the overstay rate is 6.19 percent
for F-visa non-immigrants, 3.8 percent for J-visa non-immigrants, and 11.6 percent for Mvisa non-immigrants. Ex. A at 2.
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 84.

The overstay rates asserted in the August 2018 Policy Memorandum are

misleading and inaccurate. In fact, USCIS does not have any accurate means of assessing
overstay rates. SEVIS does not include a means to track departures from the United States by
F, J, and M visa holders.
85.

USCIS cites “out-of-country” overstay rates, describing individuals whose

departure was recorded after their lawful period of admission expired. This likely
encompasses individuals who stayed just a few days longer than the conclusion of their
program to tie up their personal affairs and is not a true representation of the “overstay”
population with which Defendants are concerned. Indeed, regulations specifically authorize
individuals to stay in the United States during 30- and 60-day grace periods.
86.

The “in-country” overstay rates have been calculated at much lower rates by

Defendants.
87.

The source on which USCIS relies for this information recognizes that

calculating overstay rates is difficult and uncertain.
88.

USCIS has admitted to being unable to know with certainty when many

individuals on F, J, and M visas depart the United States. During an August 2018 stakeholder
call, a DHS official conceded this point.
89.

The August 2018 Policy Memorandum draws a distinction among non-

immigrant classes without justification. Per the terms of the policy, individuals on F, J, or M
visas begin accruing “unlawful presence” on the date that the facts give rise to that finding,
while different “date certain” accrual rules apply to all other visa classes.
90.

The August 2018 Policy Memorandum fails to offer any good reason to

support the policy change.
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 91.

The August 2018 Policy Memorandum asserts that “the Student and Exchange

Visitor Information System (SEVIS)” “has provided USCIS officers additional information
about an alien’s immigration history, including information that indicates that an alien in F,
J, or M nonimmigrant status may have completed or ceased to pursue his or her course of
study or activity.” Ex. A at 2.
92.

The August 2018 Policy Memorandum fails to recognize the fact that SEVIS

was created in 2002, and it was in effect no later than 2003. Defendants have offered no
explanation as to why, 16 years later, the creation of SEVIS justifies a major policy change
regarding unlawful presence.
93.

When Defendants reaffirmed their earlier policy in the May 2009 Policy

Memorandum, SEVIS had been operational for nearly six years.
94.

The August 2018 Policy Memorandum identifies no change in facts or

circumstances since the May 2009 Policy Memorandum.
95.

The August 2018 Policy Memorandum does not identify any evidence that

SEVIS has in fact aided accuracy.
96.

Any contention by Defendants that SEVIS creates accurate adjudications is

incorrect. As Defendants are aware, SEVIS is plagued with inaccurate information. For
example, port-of-entry information entered into the system is often incorrect.
Promulgation of the Memorandum
97.

Defendants did not undertake notice-and-comment rulemaking prior to issuing

the August 2018 Policy Memorandum.
98.

On May 10, 2018, Defendants issued a Policy Memorandum (May 2018 Policy

Memorandum), proposing to change policy with respect to unlawful presence calculations
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 for F, J, and M visa holders. See Ex. B. The May 2018 Policy Memorandum purported to
provide for a period of public comments. See Ex. B at 1.
99.

Members of the public submitted comments in response to the May 10 notice,

but the agency did not provide a reasoned response to those comments.
100.

Defendants prepared no initial regulatory flexibility analysis.

101.

The May 10 notice was not submitted for review by the Office of Management

and Budget and was not published in the Federal Register.
102.

None of the statutory exceptions to the requirement of notice-and-comment

rulemaking is applicable here. See 5 U.S.C. § 553(b).
103.

For example, the August 2018 Policy Memorandum reflects a legislative policy

judgment, not interpretive guidance. The August 2018 Policy Memorandum does not engage
in “interpretation” of the underlying statute. It does not quote the statutory text or explain
how the policy it reflects is the better interpretation of the legal text compared with the status
quo ante, which reflects more than 20 years of practice.
104.

To the extent that Defendants provide any reasons at all for the policy, the

reasoning is entirely policy-based.
105.

The August 2018 Policy Memorandum was promulgated to effect Defendants’

belief that it is a better policy compared with the status quo ante and thus should be the
governing rule.
106.

The August 2018 Policy Memorandum causes a change in existing law or

policy. The Memorandum expressly and repeatedly describes itself as establishing a “new
policy,” displacing the “former INS policy.” E.g., Ex. A at 2-3.
107.

The August 2018 Policy Memorandum states a new policy that is a matter of
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 considerable importance to the class of individuals it regulates, the higher education
community, and the American public at large.
108.

The August 2018 Policy Memorandum sets forth policy with present, binding

109.

The August 2018 Policy Memorandum admits of no discretion in its

effect.

enforcement. Adjudicators must follow the Memorandum’s requirements, with no choice.
110.

The August 2018 Policy Memorandum has the force of law.

111.

The August 2018 Policy Memorandum amends the USCIS Adjudicator’s Field

Manual. That Manual indicates that policy determinations of this sort are “binding” on
USCIS employees: “All material which is designated as policy material is binding upon all
employees of USCIS, unless or until it is specifically superseded by other policy material.
There are no exceptions to this rule.” USCIS, USCIS Adjudicator’s Field Manual § 3.4(b),
goo.gl/wnKdkx.
112.

USCIS Adjudicator’s Field Manual provides extensive guidance on

distinguishing “correspondence” and “policy” materials. The Manual states:
(a) Distinction between Correspondence and Policy.
Headquarters and regional components are responsible for issuing a large
volume of written material to field offices, the general public, congressional
office and members of the private immigration bar. The vast majority of this
material is a response to a direct, specific inquiry or a “hypothetical” situation.
Other material is prepared as implementing instructions to accompany a new
USCIS-wide program, policy or regulation. It is important to note that there is
a distinction between “correspondence” and “policy” materials. Policy
material is binding on all USCIS officers and must be adhered to unless and
until revised, rescinded or superseded by law, regulation or subsequent
policy, either specifically or by application of more recent policy material.
On the other hand, correspondence is advisory in nature, intended only to
convey the author’s point of view. Such opinions should be given appropriate
weight by the recipient as well as other USCIS employees who may encounter
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 similar situations. However, such correspondence does not dictate any binding
course of action which must be followed by subordinates within the chain of
command. Examples of policy materials are:
...
Field and Administrative Manuals
...
Memoranda and cables from Headquarters specifically designated as policy
(bearing the “P” suffix in the reference file number).
USCIS, USCIS Adjudicator’s Field Manual § 3.4(b), goo.gl/wnKdkx (emphasis
added).
113.

The August 2018 Policy Memorandum uses a “P” suffix in the reference file

number for the August 2018 Policy Memorandum, PM-602-1060.1. Ex. A at 1.
114.

The “P” suffix confirms that USCIS views the August 2018 Policy

Memorandum as the sort of binding policy memorandum that permits no discretion. The
Manual contrasts this with ten categories of correspondence—including “USCIS and General
Counsel opinions” and “Training materials”—which are not binding.
115.

When USCIS deems an individual to be unlawfully present and subject to a

three- or a ten-year reentry bar, that bar applies only after an individual exits the United
States and subsequently seeks to reenter the United States or reapplies for an immigration
benefit. At that time, the doctrine of consular non-reviewability precludes judicial review of
any USCIS determination regarding unlawful presence.
116.

There is no meaningful way in which most individuals subject to a reentry bar

may seek judicial review over that determination.
117.

Thus, while the August 2018 Policy Memorandum imposes binding obligations

on USCIS officers, and while those obligations will have severe consequences on the
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 individuals regulated as well as the academic communities to which they belong, those
individual decisions by USCIS officers are not judicially reviewable.
118.

While unlawful presence has a discretionary waiver process, the statute (8

U.S.C. § 1182(a)(9)(B)(v)) and regulation (8 C.F.R. § 212.7(e)(10)-(11)) make clear that
waiver decisions are non-reviewable.
Harm Inflicted on International Students, Researchers,
Employees, and Their Sponsoring Institutions
119.

Promulgation of the August 2018 Policy Memorandum impairs the interests of

students and employees at each institution who are present on F, J, and M visas.
120.

Under the new policy, many more international students and employees will be

subject to a three- or ten-year reentry bar as compared with the previous regulatory
framework, even in the absence of any bad faith or even knowing conduct.
121.

There are a multitude of ways in which a well-intentioned individual on an F,

J, or M visa can be adjudicated out-of-status. Some of these include:
A.

Information update: Failure of F, J, or M visa holder to update a
Designated School Officer (DSO) regarding a change to information,
including a change in address.

B.

Course load: Failure to obtain proper approval for dropping below the
minimum course load. Alternatively, USCIS may retroactively deny a
request for a student to take a course-load below that typically required.

C.

Excess work: A student on an F or M visa authorized to work 20 hours
per week on campus works an hour extra one week to complete a
deadline.

D.

Unauthorized employment: Any employment by the spouse or child
of an F, J, or M visa holder, including services as innocuous as
babysitting.

E.

Designated School Officer (DSO) error: There are a litany of errors a
DSO may inadvertently make that may render a student out-of-status.
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 Just a few examples include:

F.

G.

(i)

Making a typographical error in SEVIS.

(ii)

Erroneously identifying a student as having completed a course
of study.

(iii)

Inadvertently failing to register a student as returning for a
particular semester.

(iv)

Mistakenly entering an incorrect, premature school transfer
date.

Curricular Practical Training (CPT): Curricular practical training, is
the ability of some international students to work while attending
school. For those international students on high financial aid, this can
be a necessity if their home countries do not have a tax treaty with the
U.S. disburdening them of the requirement of paying U.S. income tax
on aid in excess of tuition; this tax can amount to thousands of dollars.
CPT creates many opportunities for an individual to violate status:
(i)

Eligibility error: After the fact, USCIS determines that CPT is
not sufficiently “integral” to student’s education and thus finds
the CPT an unauthorized form of employment.

(ii)

OPT implications: Student is not informed that a full year or
more of CPT may preclude post-completion optional practical
training.

Optional Practical Training (OPT): Students may generally apply for
one year of post-graduate employment, called OPT, if it is training
related to the completion of one’s education. For students obtaining a
degree in science, technology, engineering, or math (STEM), the
student may extend OPT for an additional two years (STEM OPT) to
complete their education. There are many ways in which an individual
may inadvertently fall out-of-“status” in connection with OPT and
STEM OPT:
(i)

Program approval: Retroactive determination by USCIS that a
student’s “optional practical training” does not qualify as
sufficiently related to a student’s degree.

(ii)

Absence reporting: Failure of the employer of a student on
optional practical training to provide a report as to any absence
by a student.
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 122.

(iii)

Training plan: Failure of the employer of a student on optional
practical training to provide a report as to any changes made to
the student’s training plan.

(iv)

Self-evaluation: Failure of a student to provide an annual selfevaluation report or final evaluation—signed by the employer—
regarding optional practical training.

(v)

Third-party placement: Error made regarding third-party
placement during an optional practical training designation.

(vi)

Worksite transfer: USCIS determination, after the fact, that an
international assignment was an impermissible worksite
transfer.

(vii)

Miscalculation of unemployment periods: DSO failure to
properly calculate a student’s unemployment periods between
jobs, such that USCIS may determine that a student was not
properly within STEM OPT status.

Many of these determinations rest on discretionary judgments by USCIS. Thus,

it is impossible for an F, J, or M visa holder—or the institution of which they are a
member—to know at the outset what conduct will render an individual out-of-status.
123.

Under the prior policy, the unlawful-presence clock began after USCIS made

these often-discretionary adjudications. That provided individuals 180 days to order their
affairs and exit the country without accruing any reentry bar—or to otherwise regain status
and avoid a reentry bar.
124.

It was standard practice—endorsed by Defendants—for students who had

fallen out-of-status to exit the country, and then reenter, beginning a new legal status.
Students and other individuals operating in good faith could thus generally cure an out-ofstatus finding, and therefore continue their education or cultural exchange programs in the
United States.
125.

The August 2018 Policy Memorandum, however, will backdate unlawful
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 presence. That means that individuals will have less than 180 days, or often no time at all, to
leave the country prior to being subject to a reentry bar.
126.

In fact, because of delays in USCIS processing and immigration court

backlogs, most of these adjudications will occur more than 180 days after the underlying
facts giving rise to a status violation. In those circumstances, an F, J, or M visa holder will
automatically be subject to a three-year reentry bar with no opportunity to cure whatsoever.
127.

Because of processing delays, and also because USCIS may make a status-

violation finding during a subsequent request for adjustment of status, many of these
adjudications will occur 365 days or more after the underlying facts giving rise to a status
violation. In those circumstances, an F, J, or M visa holder will automatically be subject to a
ten-year reentry bar with no opportunity to cure whatsoever.
128.

By design, the August 2018 Policy Memorandum will result in many more

holders of F, J, and M visas being subject to three- and ten-year reentry bars.
129.

When a student on an F, J, or M visa is subject to a reentry bar, that student is

not able to continue enrollment at the academic institution. This disrupts the student-school
relationship. It also costs the school tuition revenue.
130.

Moreover, because the August 2018 Policy Memorandum starts the unlawful-

presence clock at an earlier time, it causes colleges and universities to make different
decisions about international students, including by requiring international students to stop
their education following a finding by the school that there has been an inadvertent status
violation.
131.

When an individual participating in a J-visa cultural exchange program is

subject to a reentry bar, Plaintiff loses that valuable, trained member of the community. The
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 institution suffers financial losses when it must hire and train new individuals to fulfill the
duties of the individual barred from reentering the country. This harm accrues with respect to
international research scholars and others on cultural exchange programs. It also stems from
students who work for the university in connection with an approved on-campus
employment.
132.

When a researcher on a J-1 visa is forced to leave the United States, the

university or college irreparably loses valuable research projects. The researcher’s career is
forever disrupted. And the critical relationship between researcher and employer is upset.
133.

Plaintiffs provide international students and exchange visitors material advice

as to what they may and may not do to maintain their visa status. Plaintiffs have developed
these policies and practices in reliance on the fact that an F, J, or M visa holder will not
begin to accrue “unlawful presence” unless and until a government official adjudicates the
individual as out-of-status. Plaintiffs’ policies thus relied on the preexisting policy. The
August 2018 Policy Memorandum topples the basis on which Plaintiffs and other institutions
structured their international student advising offices, policies, and practices.
134.

Now, many schools and universities have changed the advising they provide,

and they provide fewer advising services to their international students and researchers. That
constitutes a loss to the university or college: the institution is unable to service the critical
needs of its community members, precisely because the August 2018 Policy Memorandum
upset long-settled expectations.
STANDING
135.

Plaintiffs have both independent standing and associational standing.

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 Independent Standing of University Plaintiffs
136.

Because the August 2018 Policy Memorandum was issued without being

submitted through formal notice-and-comment rulemaking, Plaintiffs had no meaningful
opportunity to provide pre-decisional comments and feedback to the agency. Defendants’
failure to provide an adequate opportunity for public comment prior to acting has caused
both Plaintiffs and their students and employees injury. All Plaintiffs therefore have been
aggrieved by promulgation of the Rule. See generally JEM Broad. Co. v. FCC, 22 F.3d 320,
326 (D.C. Cir. 1994).
137.

Plaintiffs invest substantial resources in programs designed to assist their

students and employees with obtaining and maintaining lawful immigration status. In
particular, Plaintiffs, as SEVP-certified institutions, have hired and are required to train
Designated School Officers that provide advice to each institution’s international students.
The Rule has changed the regulatory framework and consequently will require Plaintiffs to
expend additional resources on new training and assistance. Plaintiffs therefore have
standing to challenge the Rule in their own right. See generally Havens Realty Corp. v.
Coleman, 455 U.S. 363, 378-79 (1982).
138.

Because the August 2018 Policy Memorandum makes it significantly easier for

well-intentioned students to become subject to a three- or ten-year bar to reentry, many
students will have their educations in this country fundamentally disrupted.
139.

The loss to the campus environment is substantial: the school is injured

because the August 2018 Policy Memorandum removes a student that the school had
specifically chosen to attend. That imposes a direct, irreparable harm on the institution and
all its members.
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 140.

Additionally, Plaintiffs will lose tuition revenue from international students

who are subject to three- and ten-year reentry bars.
141.

The August 2018 Policy Memorandum will also chill international students’

willingness to attend institutions of higher education, including the Plaintiff institutions, in
the United States. This chilling effect will further cause a loss of revenue to Plaintiffs, and it
will hinder the ability of Plaintiffs to attract the international, diverse community that they
believe essential.
142.

Plaintiffs’ injuries are caused directly by the August 2018 Policy

Memorandum. And their injuries would be redressed by an order vacating, invalidating, or
otherwise declaring unlawful the August 2018 Policy Memorandum.
143.

Because of potential liability stemming from the consequences of advising

students, many colleges and universities are reducing the scope of advising supplied to
international students and other international members of their communities.
Associational Standing of University Plaintiffs
144.

Plaintiffs’ students have standing to sue in their own right as parties regulated

under the August 2018 Policy Memorandum.
145.

Neither the claims asserted nor the relief requested in this lawsuit requires

individual students’ or employees’ participation in this lawsuit.
146.

Plaintiffs’ missions as institutions of higher education include representing and

advocating for the interests and rights of their students and employees before government
bodies.
147.

Plaintiffs’ students and employees are formal members of each school.

Students pay tuition, dues, and other fees and are accordingly afforded the formal benefits of
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 membership in the school community. Each Plaintiff is therefore a formal association of
students and faculty who join together in pursuit of their educational mission.
148.

Plaintiffs’ and their members’ injuries would be redressed by an order

vacating, invalidating, or otherwise declaring unlawful the August 2018 Policy
Memorandum.
Associational Standing of Guilford College International Club
149.

Guilford College International Club is a voluntary association whose members

include Guilford students present in the United States on F-1 visas.
150.

Members of Guilford College International Club present in the United States

on F-1 visas have standing to sue in their own right as parties regulated under the August
2018 Policy Memorandum.
151.

Neither the claims asserted nor the relief requested in this lawsuit requires

individual members’ participation in this lawsuit.
152.

Guilford College International Club’s mission includes advocating for the

rights of its international student members. In celebrating and advocating for diversity,
moreover, Guilford College International Club counts as among its mission advocating for
policies that ensure its members present on F-1 visas have full and fair opportunity to be
present in the United States without undue fear about the imposition of a three- or ten-year
reentry bar.
153.

Guilford College International Club’s and their members’ injuries would be

redressed by an order vacating, invalidating, or otherwise declaring unlawful the August
2018 Policy Memorandum.

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 FIRST CAUSE OF ACTION:
THE AUGUST 2018 POLICY MEMORANDUM WAS ISSUED WITHOUT
OBSERVANCE OF PROCEDURE REQUIRED BY LAW
154.

Plaintiffs incorporate by reference the preceding allegations of this Complaint.

155.

Under the Administrative Procedure Act, an agency must provide “[g]eneral

notice of proposed rule making … published in the Federal Register” whenever the agency
seeks to promulgate a rule. 5 U.S.C. § 553(b). After the agency has published the required
notice, “the agency shall give interested persons an opportunity to participate in the rule
making through submission of written data, views, or arguments.” Id. § 553(c).
156.

Following the submission of comments, the agency must then respond to those

comments. “[I]nextricably intertwined with . . . 5 U.S.C. § 553(c) is the agency’s need to
respond, in a reasoned manner, to any comments received by the agency that raise significant
issues with respect to a proposed rule.” Mid Continent Nail Corp. v. United States, 846 F.3d
1364, 1379 n.11 (Fed. Cir. 2017). “[C]onsideration of comments as a matter of grace is not
enough. It must be made with a mind that is open to persuasion.” Advocates for Highway &
Auto Safety v. Fed. Highway Admin., 28 F.3d 1288, 1292 (D.C. Cir. 1994) (citation and
alteration omitted).
157.

Several other legal obligations follow from a Section 553 rulemaking

procedure. For example, 5 U.S.C. § 603 requires the preparation of an “initial regulatory
flexibility analysis.”
158.

Defendants did not undertake notice-and-comment rulemaking prior to issuing

the August 2018 Policy Memorandum.
159.

Defendants prepared no initial regulatory flexibility analysis.

160.

Although the agency purported to accept comments in its May notice, this
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 procedure was not an authorized alternative to the required rulemaking.
161.

The August 2018 Policy Memorandum was therefore issued “without

observance of procedure required by law” and is invalid under 5 U.S.C. § 706(2)(D).
SECOND CAUSE OF ACTION:
THE AUGUST 2018 POLICY MEMORANDUM IS
SUBSTANTIVELY ARBITRARY AND CAPRICIOUS
162.

Plaintiffs incorporate by reference the preceding allegations of this Complaint.

163.

The August 2018 Policy Memorandum constitutes a substantial change in

policy from approximately 20 years of prior behavior.
164.

“[U]nexplained inconsistency in agency policy is a reason for holding an

interpretation to be an arbitrary and capricious change from agency practice.” Encino
Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (citation and quotation marks
omitted). Defendants have failed to provide “good reasons for the new policy.” Id.
165.

Defendants assert that the basis for the policy change is enhanced accuracy in

their data that has been caused by the use of SEVIS. But Defendants fail to recognize that
SEVIS has been fully operational since August 2003, and Defendants fail to identify any
change in circumstances since May 2009, when they previously reaffirmed their
longstanding policy.
166.

Defendants also rely on faulty data. Assuming for the sake of argument that the

overstay rate is relevant, Defendants have relied on the wrong and inaccurate data in
assessing the overstay rate.
167.

Defendants have failed to identify any match between the alleged problem—

asserted overstays of F, J, and M visa holders—and the August 2018 Policy Memorandum.
Given that the new policy fails to identify how it will address overstay rates, the policy is
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 arbitrary and capricious.
168.

The status quo ante has engendered serious reliance interests that must be taken

into account. Defendants did not acknowledge these interests or take them into account.
169.

Moreover, Defendants now treat similarly situated individuals differently.

USCIS does not, for example, backdate an out-of-status finding regarding an individual on
an H-1B visa for purposes of unlawful presence. This is consistent with the statutory
definition and over 20 years of interpretation. The August 2018 Policy Memorandum singles
out F, J, and M visa holders, subjecting them to unique, harsh regulations. Defendants do not
address, much less justify, why individuals on F, J, and M visas are treated more harshly than
are individuals present in the United States via other kinds of visas.
170.

The August 2018 Policy Memorandum accordingly is “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law” and is invalid under 5 U.S.C. §
706(2)(A).
THIRD CAUSE OF ACTION:
THE AUGUST 2018 POLICY MEMORANDUM IS
INCONSISTENT WITH THE STATUTORY TEXT
171.

Plaintiffs incorporate by reference the preceding allegations of this Complaint.

172.

The August 2018 Policy Memorandum is “unlawful” because it is “in excess of

statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2).
Because the policy conflicts with the governing statute, it is invalid and may not be enforced.
173.

8 U.S.C. § 1182(a)(9)(B)(ii) provides in relevant part that “an alien is deemed

to be unlawfully present in the United States if the alien is present in the United States after
the expiration of the period of stay authorized by the Attorney General.”
174.

This statute created the concept of “unlawful presence.” The concept did not
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 previously exist in immigration law.
175.

Prior to 1996, however, other related concepts had existed. In particular, prior

statutes addressed individuals in “unlawful status” (see, e.g., 8 U.S.C. § 1255a) and
“unlawful immigration status” (see, e.g., id. § 1255). The 1996 Act did not use the wellestablished concept of “status,” but instead created a new category of “unlawful presence.”
176.

USCIS observed in 2009 that there is a critical distinction between unlawful

status and unlawful presence. As USCIS wrote in its May 2009 memorandum (Ex. C at 9):
(2) Distinction Between “Unlawful Status” and “Unlawful Presence”
To understand the operation of sections 212(a)(9)(B) and 212(a)(9)(C)(i)(I) of
the Act, it is important to comprehend the difference between being in an
unlawful immigration status and the accrual of unlawful presence (“period of
stay not authorized”). Although these concepts are related (one must be
present in an unlawful status in order to accrue unlawful presence), they are
not the same.
As discussed in chapters 40.9.2(b)(2) and (3), there are situations in which an
alien who is present in an unlawful status nevertheless does not accrue
unlawful presence.
177.

The plain statutory text dictates the same result here. When a visa holder is

provided a date certain on which the visa expires, including via a date certain on a Form I-94,
then the “expiration” of the “period of stay authorized by the Attorney General” is concrete.
The period of stay authorized expires on the date stated.
178.

By contrast, when a visa holder is admitted for the “duration of status,” the

“period of stay authorized” reaches “expiration” when the Attorney General makes a finding
that the person is out-of-“status,” a decision which thus terminates the “period of stay
authorized.”
179.

8 U.S.C. § 1202(g) likewise applies to an individual who has “remained in the

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 United States beyond the period of stay authorized by the Attorney General.” The prevailing
policy embodied in this statute is at odds with the August 2018 Policy Memorandum.
180.

The August 2018 Policy Memorandum is therefore “in excess of statutory

jurisdiction, authority, or limitations, or short of statutory right” and is invalid under 5 U.S.C.
§ 706(2)(C).
FOURTH CAUSE OF ACTION:
THE AUGUST 2018 POLICY MEMORANDUM VIOLATES THE
FIFTH AMENDMENT’S DUE PROCESS GUARANTEE
181.

Plaintiffs incorporate by reference the preceding allegations of this Complaint.

182.

The August 2018 Policy Memorandum violates the procedural and substantive

protections of the Fifth Amendment’s Due Process Clause.
183.

Whether Defendants will determine that a particular individual is within

permissible “status” on an F, J, or M visa is a decision that an individual cannot know with
certainty at the outset. Not only do new circumstances create novel legal questions, but—in
many cases—there are discretionary judgment calls and inconsistent interpretations of
language in regulations and policy memoranda that determine whether someone is within or
without status.
184.

The holder of an F, J, or M visa cannot therefore know with any confidence

what conduct will cause a USCIS official or immigration judge to later deem him or her to
be outside approved “status.”
185.

Under the prior policy, an individual was provided notice before he or she

could be subject to the harsh penalty and restriction of freedom that is a three- or ten-year
reentry bar.
186.

Now, however, the August 2018 Policy Memorandum renders it impossible for
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 an individual to know with certainty what conduct will trigger such a reentry bar. An
individual may commit conduct that he or she has no reasonable way of knowing will later
cause an USCIS officer or immigration judge to later declare him or her “out-of-status,”
and—because of the new policy of backdating—will be immediately subject to a reentry bar
once that decision is made.
187.

In this way, the August 2018 Policy Memorandum makes the imposition of the

three- and ten-year bars to reentry unpredictable, vague, and arbitrary.
188.

The Due Process Clause provides F, J, and M visa holders the right to notice

and an opportunity to cure prior to imposition of a three- or ten-year reentry bar. Because the
August 2018 Policy Memorandum precludes that essential right, it is unlawful.
189.

Under the August 2018 Policy Memorandum, if an F, J, or M visa’s principal

holder is deemed to be unlawfully present, so too will those individuals whose visas are
derivative of and dependent upon the principal’s visa. Because those derivative visa holders
may have no knowledge of the activities of the F, J, or M visa holder that renders the
principal out-of-status, they lack the notice and opportunity to cure that is required by the
Due Process Clause.
190.

The August 2018 Policy Memorandum is therefore “contrary to constitutional

right, power, privilege, or immunity” and invalid under 5 U.S.C. § 706(2)(B).
REQUEST FOR RELIEF
For the foregoing reasons, Plaintiffs request that the Court:
a) declare that the August 2018 Policy Memorandum is unlawful;
b) vacate the August 2018 Policy Memorandum;
c) enjoin Defendants from enforcing or applying any aspect of the August 2018
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 Policy Memorandum;
d) grant Plaintiffs their costs in this action, including reasonable attorneys’ fees
incurred; and
e) award other relief that the Court deems just and proper.

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 Respectfully submitted,
Paul W. Hughes
(Notice of Special Appearance Forthcoming)
D.C. Bar No. 997235
Michael B. Kimberly
(Notice of Special Appearance Forthcoming)
D.C. Bar No. 991549
Mayer Brown LLP
1999 K Street NW
Washington, DC 20006
(202) 263-3000
(202) 263-3300 (fax)
phughes@mayerbrown.com
mkimberly@mayerbrown.com
/s/ Cory S. Menees
Cory S. Menees
N.C. State Bar No. 045111
Mayer Brown LLP
214 North Tryon Street, Suite 3800
Charlotte, NC 28202
(704) 444-3500
cmenees@mayerbrown.com
H. Ronald Klasko
(Notice of Special Appearance Forthcoming)
Klasko Immigration Law Partners, LLP
1601 Market Street, Suite 2600
Philadelphia, PA 19103
(215) 825-8600
rklasko@klaskolaw.com
Attorneys for Plaintiffs
Dated: October 23, 2018

Case 1:18-cv-00891-CCE-JEP Document 1 Filed 10/23/18 Page 37 of 37