As legal challenges mount against the US agencies for termination of the SEVIS records of hundreds of international students and district courts are increasingly granting temporary restraining orders (TROs) against such termination, the stand adopted by US agencies to downplay the irreparable harm caused to students is being widely discussed by immigration attorneys.
An affidavit submitted by Andre Watson, a senior official in the Department of Homeland Security (DHS) to a US district court (Michigan Southern Division) stated that termination of a SEVIS record does not effectuate a visa revocation. This affidavit was submitted in the case of a lawsuit where one of the four plaintiffs is an Indian student. As international students seek to bring to the notice of courts the ‘irreparable harm’ caused to them by a SEVIS termination, the message in this affidavit is being echoed by US agencies to downplay this plea.
Based solely on Watson’s affidavit, if the SEVIS record is terminated a student can continue to study, but immigration attorneys suggest filing a lawsuit to get a clear-cut answer. In contrast, SEVIS termination notices received by students, largely from the Designated School Officials (DSOs) state: “Students with a terminated SEVIS record must depart the U.S. immediately; there is no grace period following a SEVIS termination. We advise you to depart the US as soon as possible.”
Many attorneys term the response of US agencies in district courts as ridiculous. Greg Siskind, founding partner at Siskind Susser, an immigration law firm said, “SEVIS terminations are triggering visa revocations by the State Department, employment authorization terminations, and even notices to appear and the initiation of deportation and removal proceedings.”
Immigration experts and advocacy groups say that SEVIS termination has left students in legal limbo. Even assuming students can continue to study despite a terminated SEVIS, the hundreds of students undergoing Optional Practical Training (OPT) post their studies would have to cease work. Also switching universities or re-entry into the US after a trip home would not be possible.
A district court recently granted a temporary restraining order (TRO) to 133 international students. In their lawsuit they contended that once admitted to the US with an F-1 visa, international students are granted permission to stay for the ‘duration of status’ as long as they meet the requirements of this visa - maintaining a full course of study and avoiding unauthorized employment. However, it was the SEVIS registration termination that has rendered them vulnerable to devastating immigration outcomes such as detention and deportation, as well as irreparable harm. These plaintiffs pointed out that in many instances, only SEVIS has been terminated, and the F-1 visa had not been revoked by another agency – the Department of State (DOS)
Attorneys: SEVIS termination is effectively a legal status termination: “I will note this is the litigation position, taken by US agencies. But, when pressed on it, they cannot confirm anything. In Judge Reyes’ Court, she asked to get Immigration Customs & Enforcement (ICE) to confirm if our client (international student) was lawfully present, and they couldn’t answer,” stated Steven A. Brown, partner, at the immigration law firm of Reddy, Neumann, Brown. “So, with this in mind, I still believe they are out of status,” he added.
Immigration attorneys also add that the position taken by US agencies in court ignores the practical consequences of a terminated SEVIS record. “For now, individual students whose SEVIS registration has been terminated have to sue DHS in federal courts to get case-specific answers, as the government is saying one thing in court – ‘No, it does not terminate F-1 nonimmigrant visa status nor trigger unlawful presence’, while saying the opposite in its direct communications to students and to Designated School Officials - ‘Yes, it does terminate your lawful F-1 status. Leave now’,” explained Karin Wolman, a New York based attorney.
Rekha Sharma-Crawford, an immigration attorney based in Kanas City told TOI, “I think schools currently are concerned that if they allow a student to continue to attend despite their terminated status, the government would retaliate against them. Many schools have taken the position that when the student is terminated in the SEVIS system which strips an individual from being able to lawfully remain in the US, that de facto terminates a student’s ability to participate in an educational program. Thus, for the school to then allow the student to continue to take classes would open the school up to liability. The government has already indicated that they will be pursuing criminal harboring charges against anyone who facilitates someone who is out of status to remain in the US, so from the school’s perspective, I can see why they may have grave concerns.”
“The US Constitution says that all persons (not just citizens) have the right to due process - which means notice and an opportunity for your defense to be heard. In several cases the students had some interaction with the police but were never charged nor convicted. The administration’s misuse of artificial intelligence to mine databases to unlawfully terminate SEVIS without notifying them or their educational institutions is no due process at all,” said Jath Shao, founder of an immigration law firm.
To illustrate, students who encountered the police for infractions are instances which most US citizens would consider a daily occurrence. These included not wearing a seatbelt, tickets for illegal parking, or speeding tickets and did not warrant visa revocation and/or SEVIS termination, states American Immigration Lawyers Association.
“ICE themselves know they do not have the power to terminate an international student’s status nor deem them unlawfully present. But if they scare an educational institution into telling a student to stop studying and intimidate an international student to leave then the Trump administration can evade due process by stating that the student voluntarily self-deported,” added Shao.
Watson’s affidavit and OPT program: International students, post their studies, can gain practical work experience under the OPT program of one year – three years for STEM students. The majority view, among immigration attorneys, is that termination of SEVIS automatically terminates their employment authorization.
“Because F-1 reinstatement is limited to those who are still completing a course of study, this remedy is unavailable to those F-1s who have already graduated and are working full-time under OPT or STEM OPT, if someone working under OPT receives a notice terminating their SEVIS record, and/or an email from the consulate revoking their F-1 visa, they should speak to a litigator about suing - assuming the action is unwarranted,” said Wolman.
Adam Cohen, partner at Siskind Susser, states, “It is unclear. The current DHS policy is that a SEVIS termination ends all related work authorization. However, this does tend to clash with the Watson declaration, as well as a federal regulation code, which essentially states that an employment authorization document is good until it's revoked.”
Unlawful presence: Lastly, the issue is whether if the students post SEVIS-termination continue to stay on in the US, post SEVIS revocation, will they accrue unlawful presence? Unlawful presence of 180 days or more carries a three-year bar on re-entry, if it is 365 days or more the bar is of ten years.
“Yes, they do accrue unlawful presence because they are not in status. However, the first 179 days of unlawful presence does not necessarily carry a penalty, and the person could depart the US during that time and reapply for their F-1 or other status -but it is uncertain if they would actually be granted that status. Put another way, if the government was going to issue them the same or different nonimmigrant visa, then why terminate them in the first place?,” asked Sharma-Crawford.
Cohen said, “We now have the Watson declaration from some of the litigation, which shows ICE's viewpoint that the termination of SEVIS does not, in and of itself, terminate lawful student status. Second, regardless of whether status may be ended, the accrual of unlawful presence is a different concept. The current policy is that accrual of unlawful presence towards the three and ten year bars does not accrue until USCIS or an immigration judge has issued a decision. However, USCIS’s page seems to alter this…”
To explain, an update on Jan 25 states that – Non-immigrants admitted for the duration of status, generally begin accruing unlawful presence the day after their status ends, if they remain in the US.
The lawsuits continue to be filed, hearings are ongoing, and the international student community is waiting for some concrete answers.
An affidavit submitted by Andre Watson, a senior official in the Department of Homeland Security (DHS) to a US district court (Michigan Southern Division) stated that termination of a SEVIS record does not effectuate a visa revocation. This affidavit was submitted in the case of a lawsuit where one of the four plaintiffs is an Indian student. As international students seek to bring to the notice of courts the ‘irreparable harm’ caused to them by a SEVIS termination, the message in this affidavit is being echoed by US agencies to downplay this plea.
Based solely on Watson’s affidavit, if the SEVIS record is terminated a student can continue to study, but immigration attorneys suggest filing a lawsuit to get a clear-cut answer. In contrast, SEVIS termination notices received by students, largely from the Designated School Officials (DSOs) state: “Students with a terminated SEVIS record must depart the U.S. immediately; there is no grace period following a SEVIS termination. We advise you to depart the US as soon as possible.”
Many attorneys term the response of US agencies in district courts as ridiculous. Greg Siskind, founding partner at Siskind Susser, an immigration law firm said, “SEVIS terminations are triggering visa revocations by the State Department, employment authorization terminations, and even notices to appear and the initiation of deportation and removal proceedings.”
Immigration experts and advocacy groups say that SEVIS termination has left students in legal limbo. Even assuming students can continue to study despite a terminated SEVIS, the hundreds of students undergoing Optional Practical Training (OPT) post their studies would have to cease work. Also switching universities or re-entry into the US after a trip home would not be possible.
A district court recently granted a temporary restraining order (TRO) to 133 international students. In their lawsuit they contended that once admitted to the US with an F-1 visa, international students are granted permission to stay for the ‘duration of status’ as long as they meet the requirements of this visa - maintaining a full course of study and avoiding unauthorized employment. However, it was the SEVIS registration termination that has rendered them vulnerable to devastating immigration outcomes such as detention and deportation, as well as irreparable harm. These plaintiffs pointed out that in many instances, only SEVIS has been terminated, and the F-1 visa had not been revoked by another agency – the Department of State (DOS)
Attorneys: SEVIS termination is effectively a legal status termination: “I will note this is the litigation position, taken by US agencies. But, when pressed on it, they cannot confirm anything. In Judge Reyes’ Court, she asked to get Immigration Customs & Enforcement (ICE) to confirm if our client (international student) was lawfully present, and they couldn’t answer,” stated Steven A. Brown, partner, at the immigration law firm of Reddy, Neumann, Brown. “So, with this in mind, I still believe they are out of status,” he added.
Immigration attorneys also add that the position taken by US agencies in court ignores the practical consequences of a terminated SEVIS record. “For now, individual students whose SEVIS registration has been terminated have to sue DHS in federal courts to get case-specific answers, as the government is saying one thing in court – ‘No, it does not terminate F-1 nonimmigrant visa status nor trigger unlawful presence’, while saying the opposite in its direct communications to students and to Designated School Officials - ‘Yes, it does terminate your lawful F-1 status. Leave now’,” explained Karin Wolman, a New York based attorney.
Rekha Sharma-Crawford, an immigration attorney based in Kanas City told TOI, “I think schools currently are concerned that if they allow a student to continue to attend despite their terminated status, the government would retaliate against them. Many schools have taken the position that when the student is terminated in the SEVIS system which strips an individual from being able to lawfully remain in the US, that de facto terminates a student’s ability to participate in an educational program. Thus, for the school to then allow the student to continue to take classes would open the school up to liability. The government has already indicated that they will be pursuing criminal harboring charges against anyone who facilitates someone who is out of status to remain in the US, so from the school’s perspective, I can see why they may have grave concerns.”
“The US Constitution says that all persons (not just citizens) have the right to due process - which means notice and an opportunity for your defense to be heard. In several cases the students had some interaction with the police but were never charged nor convicted. The administration’s misuse of artificial intelligence to mine databases to unlawfully terminate SEVIS without notifying them or their educational institutions is no due process at all,” said Jath Shao, founder of an immigration law firm.
To illustrate, students who encountered the police for infractions are instances which most US citizens would consider a daily occurrence. These included not wearing a seatbelt, tickets for illegal parking, or speeding tickets and did not warrant visa revocation and/or SEVIS termination, states American Immigration Lawyers Association.
“ICE themselves know they do not have the power to terminate an international student’s status nor deem them unlawfully present. But if they scare an educational institution into telling a student to stop studying and intimidate an international student to leave then the Trump administration can evade due process by stating that the student voluntarily self-deported,” added Shao.
Watson’s affidavit and OPT program: International students, post their studies, can gain practical work experience under the OPT program of one year – three years for STEM students. The majority view, among immigration attorneys, is that termination of SEVIS automatically terminates their employment authorization.
“Because F-1 reinstatement is limited to those who are still completing a course of study, this remedy is unavailable to those F-1s who have already graduated and are working full-time under OPT or STEM OPT, if someone working under OPT receives a notice terminating their SEVIS record, and/or an email from the consulate revoking their F-1 visa, they should speak to a litigator about suing - assuming the action is unwarranted,” said Wolman.
Adam Cohen, partner at Siskind Susser, states, “It is unclear. The current DHS policy is that a SEVIS termination ends all related work authorization. However, this does tend to clash with the Watson declaration, as well as a federal regulation code, which essentially states that an employment authorization document is good until it's revoked.”
Unlawful presence: Lastly, the issue is whether if the students post SEVIS-termination continue to stay on in the US, post SEVIS revocation, will they accrue unlawful presence? Unlawful presence of 180 days or more carries a three-year bar on re-entry, if it is 365 days or more the bar is of ten years.
“Yes, they do accrue unlawful presence because they are not in status. However, the first 179 days of unlawful presence does not necessarily carry a penalty, and the person could depart the US during that time and reapply for their F-1 or other status -but it is uncertain if they would actually be granted that status. Put another way, if the government was going to issue them the same or different nonimmigrant visa, then why terminate them in the first place?,” asked Sharma-Crawford.
Cohen said, “We now have the Watson declaration from some of the litigation, which shows ICE's viewpoint that the termination of SEVIS does not, in and of itself, terminate lawful student status. Second, regardless of whether status may be ended, the accrual of unlawful presence is a different concept. The current policy is that accrual of unlawful presence towards the three and ten year bars does not accrue until USCIS or an immigration judge has issued a decision. However, USCIS’s page seems to alter this…”
To explain, an update on Jan 25 states that – Non-immigrants admitted for the duration of status, generally begin accruing unlawful presence the day after their status ends, if they remain in the US.
The lawsuits continue to be filed, hearings are ongoing, and the international student community is waiting for some concrete answers.
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