Over the past couple of weeks, I have spoken with multiple students who have had their F-1 visas revoked and their SEVIS terminated. Most of these students had DWIs or other alcohol related arrests. Other attorneys reported speaking with students who had minor infractions such as parking or speeding tickets. In some cases, the charges were completely dismissed, leaving students puzzled as to why their SEVIS had been terminated in the first place.

This recent spat of SEVIS terminations was a new development, and attorneys, students and Designated School Officials (DSOs) were left bewildered. Immigration and Customs Enforcement (ICE) were the driving force behind these terminations and DSOs were forced to deliver this bad news, without any sort of solution.

Although filing a reinstatement to F-1 status appeared to be an option early on, it quickly became apparent that schools were not prepared to issue reinstatement I-20s. In any event, USCIS is unlikely to have approved of these, especially for those with arrests. To file a successful reinstatement application, an F-1 student would need to show that they fell out of status due to circumstances outside of their control. USCIS has made it clear that students’ actions, including criminal activity,y would not be considered circumstances outside of their control. In any event to file for reinstatement, you must be enrolled in school so reinstatement was not an option for those who had graduated and were on OPT/ STEM OPT. Additionally, it is unlikely that US Citizenship and Immigration services (USCIS) would have overturned a decision made by ICE, given that both agencies fall under the Department of Homeland Security (DHS).

Changing status was another option which I discussed with clients, but the major obstacle here was filing a change of status while not currently maintaining status. The prevailing view was that a SEVIS termination resulted in the end of F-1 status. Even if USCIS approved a change of status, it would be considered a late filing and the effective date would be the approval date (many months later), therefore leaving the student with a gap in status.

It quickly became apparent that the only effective way to restore status was to file a federal lawsuit seeking a Temporary Restraining Order (TRO), either as part of a class action or an individual lawsuit. Many students filed suits through various well-known litigation attorneys and several Federal judges granted the TROs.

As part of one of the lawsuits ICE submitted an affidavit from Andre Watson, Assistant Director, National Security Division- Homeland Security Investigations, ICE. Notably the Assistant Director stated that SEVIS was set up to manage and track students in F, M and J categories and claimed that “terminating a record in SEVIS does not terminate an individual’s nonimmigrant status in the United Status.” In other words, ICE was trying to argue that despite a SEVIS termination, a student’s F-1 status remained intact. However, this raises an obvious question- if a student’s status remains intact, why terminate the SEVIS record at all? The affidavit did not explain ICE’s underlying motivation for the SEVIS terminations.

Reversal and Current Developments

In a significant policy reversal, the federal government has begun reinstating SEVIS records for affected students. This decision came after federal judges expressed skepticism about the legality of the terminations and ordered the restoration of some students’ records. These reinstatements impacted not just those that had filed a federal Lawsuit but also those that did not file.

The government has clarified that SEVIS records will not be modified solely based on findings from the National Crime Information Center, which had been a basis for many of the recent terminations.

Conclusion

The recent reversal of SEVIS terminations marks a positive development for affected F-1 students, providing them with an opportunity to continue their studies without the immediate threat of removal. However, what is not clear is why these terminations happened in the first place. It appears the administration may have been motivated by a desire to create fear, sow chaos, and pressure individuals into self-deportation. Even with SEVIS records reinstated, those who have left the US, particularly with a visa revocation, will have a tough time obtaining a new visa and returning to the US.

If you have any questions regarding the above, please reach out to myself at cprescott@patellegal.com.