F-1 Students of Tri-Valley University – Issues and Options

F-1 Students of Tri-Valley University – Issues and Options

Background
On January 19, 2010, Department of Homeland Security raided Tri-Valley University (“TVU”) in Pleasanton, California. The U.S. Attorney’s office alleged, inter alia, that TVU and its founder Susan Su were committing an immigration fraud scheme whereby they were paid millions of dollars by foreign nationals to illegally obtain student visas to remain in the United States.

There were as many as 1,500 students or more enrolled at TVU or are otherwise affected by its closure, of which 95% are alleged to be from India. Several students have been detained and questioned by Immigration Customs Enforcement (ICE) Agents and placed in deportation proceedings.

This Memo addresses issues for the TVU students. However, please note that students must seek legal counsel to determine the best course of action for them. This memorandum is not intended to give legal advice.

Some Basic Concepts

Before we proceed further, it may be worthwhile to explain the concepts Out of Status and Unlawful Presence with reference to F-1 visas.

An F-1 visa is granted for “duration of status.” Duration of status is defined in the regulations as the time during which an F-1 student is pursuing a full course of study at an educational institution approved by the Service for attendance by foreign students, or engaging in authorized practical training following completion of studies. This means that as long as the student is pursuing a full course of study at an accredited school they are in status.

Being out of status or otherwise in violation of one’s status could be grounds for deportation. However, foreign student are not subject to an immigration bar simply by virtue of being out of status.

Status is a different concept than “Unlawful Presence.” Unlawful presence may subject a foreign national to bars to admission. If unlawfully present in the U.S. for over 180 days but less than 1 year, the alien may be subject to a 3 year bar. If unlawfully present for over 1 year, the alien may be subject to a 10 year bar.

An F-1 student may only be found to be unlawfully present if USCIS or an Immigration Judge adjudicates the student to be unlawfully present.

1. SEVP/SEVIS Update

The Student and Exchange Visitor Program (SEVP) instructed school officials to contact the SEVP Help Desk to “manage the student record.” Schools were instructed not to initiate a new SEVIS record for the student. SEVIS records of the TVU students were either cancelled or terminated, and employment authorization for the students was terminated as of January 19, 2011.

The SEVP Response Center provides the student with three options. TVU students are advised to seek legal counsel before considering any of the three options:

(i) Report to ICE;
(ii) Voluntarily depart the United States;
(iii) File for re-instatement with U.S. Citizenship and Immigration Service.

Before we proceed further, it is important to note that calling the SEVP Response Center does not confer any benefits/advantages. The SEVP Response Center is administered by ICE, which is an enforcement agency under the Department of Homeland Security. Students are not required to contact the SEVP Response Center. If they choose to do so, students are advised to first seek legal counsel. Students are made to provide their address when they call the SEVP Response Center- making it easier for ICE to come and pick them up.

a. Reinstatement must be filed with USCIS

An application is made to the U.S. Citizenship and Immigration Services (USCIS) after the student gains admission to a school and the school is willing to issue an I-20 recommending reinstatement.

As per the regulations, reinstatement may be granted if the student has not been out of status for more than 5 months at the time of filing the request for reinstatement. Alternatively, student must demonstrate the failure to file within the 5 month period was the result of exceptional circumstances and that the student filed the request for reinstatement as promptly as possible under these exceptional circumstances.

There is no guarantee that the reinstatement application will be approved. In fact, if the reinstatement application is denied, the student will be deemed to accrue unlawful presence from the date of denial. Moreover, USCIS may share the information obtained through the course of a reinstatement application with ICE. It is reiterated that former TVU students should seek legal counsel before invoking this (or any) option. Not too many successful reinstatement cases have been filed.

b. Application to Change Status (from F-1 to H-4, F-2, H-1B or even B as appropriate)

A change of status may be possible to a dependent visa such as H-4 or F-2, or to an H-1B. A successful change of status petition requires that the applicant currently be in good status. An exceptional reason must exist for the applicant to be out of status. Since TVU students are likely considered to be out of status, a student would need to establish exceptional circumstances for being out of status when applying for a change of status. Notice to Appear ("NTA") have been issued in such cases.

c. Restoring status through travel and a new I-20.

According to current regulations, a student who was not pursuing a full course of study is permitted to “depart the country and return as an initial entry in a new F-1 nonimmigrant status.” However, there may be problems at the port of entry when the student tries to re-enter the U.S. CBP officers may determine that the student is violating the terms of their student visa. The consequences of CBP denying admission to the U.S. might include: (1) Expedited Removal; (2) a Notice to Appear for Removal Proceedings; and (3) a 5 year ban from re-entry.

d. Departing the U.S. and entering in a different status

Students may leave the U.S. and return on a different status, such H-4, F-2, or H-1B. The possibility of obtaining another visa and the risks associated with the same should be discussed with an Attorney. Additional obstacles may occur at the port of entry when the former TVU student tries to re-enter the U.S., even in a different status.

2. Deportation Proceedings

If a TVU student receives a NTA they should immediately contact a local immigration attorney. The NTA is the initiation of removal proceedings and can lead to deportation and a possible bar to returning to the U.S. TVU students must appear before the court on any scheduled dates. Failure to appear/respond could have permanent immigration consequences.

Students may consider Voluntary Departure as a form of relief. Voluntary departure allows an individual, who is otherwise removable, to depart from US at their own expense within a specified time to avoid a final order of removal.

3. What to do if ICE contacts/visits a TVU student?

ICE agents may contact any TVU student. If contacted by ICE, you may try to schedule a time to speak with them. This would give you time to contact an attorney. In any case, it is highly recommended that TVU students contact a knowledgeable immigration attorney in their area even before ICE officials contact them. Having retained a local Attorney beforehand will allow you to quickly contact the Attorney when ICE officers are at your door. There is no point in resisting the ICE visit or refusing to answer their questions. Students refusing to cooperate will most likely be detained. Students may be detained even if they cooperate.

At this point, it appears that ICE is not issuing a NTA to all TVU students, and USCIS is not denying all school changes. Each case is being viewed separately. The best option is to have your own case zealously represented by a reputable immigration Attorney.

Sweta Khandelwal
Attorney-At-Law
Law Office of Sweta Khandelwal
[email protected]