F-1 Visas & Student Status Terminations, Oh No!

Much of the country is experiencing turmoil due to economic uncertainty and international students are likewise on edge, but for very different reasons.   The administration’s latest attack on them in the name of cracking down on illegal immigration seems to have bled into the legal immigration sphere.  There have been widespread reports across the U.S. of students at universities experiencing retaliatory measures for exercising their first amendment right to free speech. 

Not only for standing for what they believe in, but for minor criminal violations, even as innocuous as traffic violations like jay walking.  These measures include the revocation of F-1 visas and the termination of SEVIS records (which will be discussed later), resulting in dire consequences to their immigration status and crushed dreams of attaining a higher education in the United States.

With good reason, the government’s termination and revocation actions, have no doubt caused foreign students to be very nervous because their immigration status is a little different from other non-immigrant classifications for a couple of reasons.  First, students are granted a duration of stay when admitted to the U.S. instead of a date certain by which to leave, which almost all other non-immigrants receive. Secondly, oversight of international students is carried out jointly between the school through its Designated School Officer (“DSO”) and the Department of Homeland Security (“DHS”), specifically the Immigration Customs & Enforcement (“ICE”) agency.

What Is Duration of Status?

Commonly annotated D/S on the I-94 when someone is admitted to the U.S. as a student or foreign exchange visitor, duration of status allows a foreign national to remain in the U.S. until their studies or program are complete.  For anyone who’s ever been enrolled in a post-secondary program knows that study of completion can often be a fluid situation.  Regardless, the key, however, is to always maintain student status by remaining enrolled in school.  Even a drop in credit hours or a missed semester can result in a violation of the duration of status.

Violations of the duration of status must be reported by the school’s DSO, who is responsible for updating students’ Certificate of Eligibility for Non-immigrant Student Status (Form I-20) and the associated record in the web-based Student and Exchange Visitor Information System (“SEVIS”) that is managed by ICE.  Violations are reported in the SEVIS system that hosts a myriad of information on every foreign student in the United States.

What Is a SEVIS Record?

The SEVIS record is a digital file that contains the student’s biographical data, immigration details such as visa type and changes in immigration status, the school being attending, and program enrollment information.  Most importantly though, the SEVIS record governs a student’s status while in the U.S.  So long as the student remains compliant with immigration law, their SEVIS record is intact, but termination thereof puts them out of lawful status thereby requiring them to depart the United States unless the termination can be cured by seeking reinstatement of the record.

SEVIS Records Termination and Student Visa Revocations En Masse

Without notice, the Trump administration quietly began revoking the F-1 visa and terminating the SEVIS record of international students.  In the beginning of April, it was first reported that only a few hundred were affected, but as the days ticked on, we now know that several thousands of foreign students are at risk of deportation. It was only when DSOs happening upon several terminated records, when randomly checking the SEVIS system, did they find the unilateral action taken by ICE that prompted them to notify international attendees of the irreparable damage that was done to their educational careers.  Reason given: Person Identified in Criminal Check.  The notation associated with the terminated record.

Others received correspondence that the Department of State had terminated their F-1 visa.

When immigration attorneys started being inundated with calls, not only from students, but by school DSOs and college and university personnel up in arms over the likes of which they had never seen before did everyone realize that the problem was systemic, these foreign nationals were in the bullseye of the administration’s crackdown on immigration. 

Thousands of international students are suddenly out of status with a terminated SEVIS record, precipitating mass hysteria among this population of noncitizens not knowing what to do next. Fearing being picked up by ICE, many are now housebound while thousands have catapulted into mental distress uncertain of whether they have to leave the country instead of graduating next month.  Yet, hundreds have had to stop working in furtherance of the educational training.

Certainty in Times of Uncertainty

Just having a criminal record certainly isn’t enough to cast a wide net and render a SEVIS record terminated, or a visa revoked.   Though many have had some kind of criminal infraction, the charges, often times were dropped or the record expunged, and certainly it wasn’t enough to rise to a SEVIS termination.  In fact, SEVIS revocation is permitted in only narrow situations such as visa fraud or national security concerns. Using AI to terminate records at the stroke of a key certainly runs afoul of due process rights that requires the government to give notice and reason, and for them a meaningful opportunity to respond and defend themselves before putting them out of status.

Certainly, the Trump administration timely and calculatingly coordinated this effort to instill fear so that students would, on their own, leave the United States despite the illegality of what they have done.

Next Steps: Reinstatement, The Obvious Option

Many have espoused filing with USCIS, ICE’s sister agency under DHS, a reinstatement.  However, for a USCIS reinstatement filing to be successful, one of the requirements the student must show is that the violation of status resulted from circumstances beyond the student’s control.  In Chapter 8 of USCIS’s policy manual, it specifically states that “violations due to the student’s actions, such as criminal activity, are not considered circumstances beyond the students control.”

Not only is one, who has criminal violations, unlikely to prevail in a USCIS reinstatement filing, but it is also hard to believe that the same agency – the Department of Homeland Security (“DHS”) – would undo actions by one of its subagency that was taken by another of its subagency. 

The one option students may be left with is reinstatement through litigation.  Some have taken it for the team and hired attorneys, that across the country, have filed individual and class action lawsuits seeking emergency temporary retaining orders with the courts to require the government to reinstate their student status. 

We’re beginning to see judges ruling against the government and in favor of students who have seen their due process rights abrogated by the Trump administration. 

Due to the cost, litigation may not be a next for you, it’s certainly not a step everyone can take, but contacting legal counsel is.

Disclaimer: The information provided in this blog post is for general informational purposes only and does not constitute legal advice.  While efforts are made to ensure the content is accurate and up to date at the time of publication, laws and regulations may change, and the information may no longer be current.  You should consult a qualified legal professional for advice specific to your situation.