Tri-valley information

[VT]

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


Background
On January 19, 2010 federal agents with the Department of Homeland Security raided Tri-Valley University (“TVU”) in Pleasanton, California.  A Complaint for Forfeiture was filed by the U.S. Attorney’s office alleging an immigration fraud scheme by TVU and its founder Susan Su. 

The Complaint alleges that Su and TVU issued “student visa related documents to foreign nationals who paid tuition in order to illegally acquire student immigration status that authorized them to remain in the United States. …Since February 2009, Su through TVU has been paid millions of dollars by foreign nationals to illegally obtain student visas that authorize them to remain in the United States.”

There may be as many as 1,500 students or more that were enrolled at TVU or otherwise affected by its closure, of which 95% are alleged to be from India.  According to the Complaint more than half of the students reported to be residing in a single apartment located at 555 E. El Camino Real, Sunnyvale, CA. 

From many individual reports the students are mostly from Andhra Pradesh, India. 

We have confirmed reports that several students have already been detained and questioned by Immigration Customs Enforcement (ICE) Agents and have been placed in deportation proceedings.

Read the full Court document here >>

This Memo addresses possible options and issues for the TVU students. 
   

1.    SEVP / SEVIS Update

According to internal guidance at the International Student and Exchange Visitor Program (“SEVP”) which tracks foreign students through the Student and Exchange Visitor Information System (“SEVIS”) as of January 27, 2011 they have no specific guidance for Tri-Valley students.

Nonetheless the Help Desk states there are some possibilities for students to transfer schools, as described below, which must be evaluated case by case. 

TVU students are encouraged to write directly to [email protected] about their particular situation. 

As guidance is issued, this section will be updated. 


2.    Transfer of SEVIS / Reinstatement (See 8 CFR §214.2(f)(8). 

The information below is unofficial guidance and each student’s case will be treated uniquely.  The possibility of items 1-5 below should be discussed with the Designated School Official (“DSO”) at the school to which the school is seeking transfer. 

(1)    Students who have transferred their initial I-20 from an accredited school to TVU but have not yet attended TVU

SEVP Help Desk recommends these students to contact their original school and see if SEVIS can do a “data fix” so that their SEVIS is transferred to the original school. 

(2)    Students who have transferred their initial I-20 from an accredited school to TVU and have begun attending TVU. 

SEVP Help Desk recommends these students to contact their original school and see if SEVIS can do a “data fix” so that their SEVIS is transferred to the original school.  This scenario is less clear than above and may be taken under review by SEVP. 

(3)    Where neither 1 or 2 apply, Students may attempt to have the SEVIS records to a new school without attempting reinstatement – CURRENTLY NOT AN OPTION

At the moment this does not appear to be a viable option because the SEVIS records for TVU are not being released because of the ongoing ICE investigation and the records are frozen. 

Once SEVP issues guidance, this may become a possibility. 

(4)    Reinstatement and SEVIS. 

A TVU student can request a new school to issue a new I-20 with the DSO’s recommendation for “Reinstatement” and the student can apply to USCIS on Form I-539 requesting Reinstatement based upon exceptional circumstances.  The student, however, will only be able to attend classes if the SEVIS records are released to the new school.  Again according to SEVP, as of today, those records are frozen. 

NOTE:  If reinstatement is denied, the student must leave the United States immediately. If the student does not leave, he or she may be placed in removal proceedings at any time under section 237(a)(C)(i) of the Immigration and Nationality Act.  See discussion below regarding Deportation and Unlawful Presence.

(5)    Leave the U.S. and obtain an “Initial” I-20 from a new school.

The third choice is for the student to get an Initial Form I-20 from the new school. The student must exit the United States and return as an initial entry in a new F-1 nonimmigrant status (initial admission). If the student chooses this option, he or she will need to pay the SEVIS I-901 fee. The student will also lose credit for any time accumulated towards qualification for benefits such as optional or curricular practical training. If the student’s visa is valid, he or she does not need a new visa if returning to the United States within 5 months of his or her exit date. If the student has a Terminated record because he or she failed to maintain status or because the student violated any provision of the Immigration and Nationality Act (“INA”), the student may be denied re-entry to the United States under section 212(a)(6)(G) of the Immigration and Nationality Act.

See ICE Guidance:  Transfers for F-1 Students, August 2007

This may be an uncertain option for TVU students as I do not know how they will be treated at the port of entry.  They may be deemed to have failed to maintain status and possibly violated the Immigration and Nationality Act. 


3.    Change Status

It may be possible to apply for a change of status to another category such as H-1B, or a dependent category such as F-2 or H-4 if the TVU student is married.  If deportation proceedings are initiated this would impact a pending change of status application. 
As of January 27, 2011 the H-1Bs for FY 2010-2011 have run out. A change of status therefore is not possible under this fiscal year.  It is my opinion that a TVU student would not be able to change status through the H-1B 2011-2012 Cap because they would be out of status without a cap gap provision to protect them by the opening filing date of April 1, 2011 for the new fiscal year. They may however be able to consular process for their H-1B.
Please note, that seeking a change of status with USCIS may also be a trigger to immigration proceedings.  At this time, I do not know if that would be the case.  Each peron should individually weigh this risk with an attorney.

4.    Leave the U.S.

a.    If attempting to leave before deportation proceedings commence.

A TVU student can leave the U.S. now.  However, a “post-departure Notice to Appear (“NTA”) could be issued and sent to the student’s last address.  That person could then have a Removal Ordered, In Absentia.  Contacting ICE before leaving the U.S. may be a way to avoid this.  Before leaving the U.S. a student should consult with a knowledgeable immigration attorney.

The individual can then attempt to return to the U.S. either through a new I-20 or some other type of visa.  Those going before the consulate may expect additional scrutiny.  This can also be true at the port of entry to the U.S.

b.    If attempting to leave after deportation proceedings commence.

The student’s immigration matter will need to be resolved before an Immigration Judge and a student should consult with a knowledgeable immigration attorney. 


5.    Deportation Proceedings

If a TVU student receives a Notice to Appear (“NTA”) they should immediately contact a reputable immigration attorney in their area.  The NTA is the initiation of removal proceedings and can lead to deportation and possible bars of ever returning to the U.S.  Do not miss any scheduled court dates as that could have permanent immigration consequences. 

One issue to be concerned with is any allegation of fraud by the foreign national.  A finding of fraud could serve as a permanent bar from the U.S.

It may be possible to negotiate with ICE and this should be explored with a reputable immigration attorney.  There may be other remedies, including, Voluntary Departure.  Voluntary departure permits an individual, who is otherwise removable, to depart from the country at her own expense within a designated amount of time in order to avoid a final order of removal.  See INA §240B. 


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

See Know Your Rights:  What To Do If Stopped by Police, Immigration Agents, or the FBI, by ACLU.  [url=http://www.aclu.org/drug-law-reform-immigrants-rights-racial-justice/know-your-rights-what-do-if-you#5]http://www.aclu.org/drug-law-reform-immigrants-rights-racial-justice/know-your-rights-what-do-if-you#5[/url]

All TVU students may be at risk of being contacted or visited by Department of Homeland Security agents from Immigration Customs and Enforcement (“ICE”).  ICE has a “quasi” police role, and often look like police officers. 

Foreign national are not required to speak with ICE agents or let them into their homes.  Given that TVU students are likely to be presumed to be in violation of their F-1 status since TVU is shut down amid immigration fraud allegations, no cooperation with ICE could lead to the TVU student being taken into custody and being detained by ICE.  ICE may make promises of immigration relief for which they are not bound.  You may try to schedule a time to speak with ICE if contacted which would allow you time to contact an attorney. 

It is highly recommended that TVU students contact a knowledgeable immigration attorney in their area even before ICE officials contact them.  All TVU students are susceptible to an ICE visit.


7.    Status vs Unlawful Presence – Basic Concepts

An F-1 visa is granted for “duration of status.”  “Duration of status is defined 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…”  8 CFR §214.2(f)(5).  This means that as long as the student is pursuing a full course of study at an accredited school they are in status. 

In the case of TVU students, I think they are out of status as of the closure of the school.  They may be deemed to have been out of status though from the beginning of their enrollment because they never truly attended a full course of study within the meaning of 8 CFR §214.2(f)(6).  That code section prohibits taking more than one class per session online or through distance education. 

Being out of status or otherwise in violation of one’s status could be grounds for deportation.  The good news though is that the foreign student is 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 deemed to be, either by the USCIS or an Immigration Judge. 

Seeking reinstatement of the F-1 through USCIS as described above in paragraph 1(2) could actually lead to a determination by USCIS that the foreign student is unlawfully present.  The same result could arise if the foreign student is before an Immigration Judge in deportation proceedings.

About the Author, Kalpana V. Peddibhotla
Kalpana V. Peddibhotla is an experienced immigration attorney practicing in the San Francisco Bay Area.  Her office is in Santa Clara, CA.  Contact her office directly if you wish to schedule an appointment.  (408) 249-3373 | [email protected]

[lance]

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[speed123]

Naadi 1st option mama.. :((

(1)    Students who have transferred their initial I-20 from an accredited school to TVU but have not yet attended TVU

SEVP Help Desk recommends these students to contact their original school and see if SEVIS can do a “data fix” so that their SEVIS is transferred to the original school. 

[jy1827]

Idi Jan 19th ki chepara??

[Harish1]

andari SEVIS terminate chesamani cheppadu

[Zeus]

*=: *=:

[url=http://www.youtube.com/watch?v=RxFHw56fTwE&feature=player_embedded#]http://www.youtube.com/watch?v=RxFHw56fTwE&feature=player_embedded#[/url]

but is this true....legs ki chip peduthunnara nijamga..... sorry2 for those guys...

[KalpanaP]

Tri-Valley Students,

After posting the information for options on my website [url=http://www.immi-law.com]www.immi-law.com[/url] I understand many people have not been successful in getting the DSOs at transferee schools to do either the data fix or request for reinstatement.  These options were recommended to me by the SEVIS help desk.  We hope to have some clarity this week as to when and whether these options can be pursued.

-Kalpana Peddibhotla

[speed123]

Kalpana, my case is similar to the first option.. can my issue be resolved this week?