Skip to content

Frequently Asked Questions for F-1 Students of University of Northern Virginia

August 3, 2011

The North American South Asian Bar Association (NASABA), is the national voice of the South Asian legal community.  NASABA has  27 chapters and over 6,000 South Asian attorneys in the United States and Canada and provides this list of Frequently Asked Questions to guide University of Northern Virginia F-1 students. 

Background

On July 29, 2011 federal Immigration and Customs Enforcement (ICE) agents raided the University of Northern Virginia’s (“UNVA”) Annandale campus.  The University of Northern Virginia is an unaccredited, for-profit private university.  Officials from ICE’s Student and Exchange Visitor Program (SEVP) served the university with a Notice of Intent to Withdraw (NOIW) UNVA’s authorization to admit foreign students. 

UNVA now has 30 days to show it is following federal rules for administering student visas. No charges have been filed nor have any people been arrested.  However, the government is investigating the school and will determine whether it will continue to be allowed to admit foreign students. 

The school has 2,300 students enrolled and 90 percent are from India. 

According to a bulletin on the SEVP website, UNVA F-1 students have been advised that they have two options: 

1.         Continue to attend classes and maintain their active status in a manner required by
regulations,
or

2.         Seek transfer to another SEVP-approved institution.

FAQs 

  1. I am an F-1 student currently enrolled at UNVA, am I out of status as a result of the ICE raid?

No.  At this time, federal officials have not terminated the immigration status of F-1 students at UNVA.  Instead, the school has been given 30 days within which to respond to the government’s NOIW.  However, if UNVA does not provide a satisfactory response to the government, F-1 students at UNVA are advised that their status may be impacted. 

  1. What are the requirements for me to maintain my F-1 status?

In order to maintain status, an F-1 student must:

  • Be enrolled in a full course of study.  Part-time study is not allowed unless you have permission from your Designated School Official (“DSO”)
  • Take no more than one online or distance learning class toward a full course of study, if requirements of the class do not include oversight of physical presence.
  • Not work without authorization;

If you are in compliance with the above requirements then you should be considered to be in status.  If you are NOT in compliance (for example, you have been working without authorization), then you are out of status and should seek advice from an immigration attorney.

  1. Is my SEVIS record still active?

The government, specifically, SEVP, has taken over the maintenance of SEVIS records for all UNVA foreign students.  As of this date they have neither terminated nor frozen UNVA SEVIS records as a result of the raid, nor have they announced plans to do so at this time.  So, our current understanding is that your SEVIS record is still active.

  1. Can I transfer to another school?

Yes, you may transfer to another SEVP approved school if you have continued to maintain your F-1 status and your SEVIS record is active.

  1. Should I transfer to another school?

NASABA has been unable to find a copy of the Notice (NOIW) issued to the University of Northern Virginia, and it is too early to say whether or not they will successfully address the concerns raised by the federal government. Nevertheless, the fact that this Notice has been issued, raises several serious concerns about UNVA’s ability to continue sponsoring F-1 students in compliance with pertinent regulations. It is recommended that students seriously consider their options.  If SEVP ultimately decides to withdraw UNVA’s certification, students should be mindful that transfers can take some time. It is best to consult with an individual immigration attorney if you believe that you will not be able to meet your obligation to attend classes and to maintain active status in the manner prescribed by the F-1 regulations. 

  1. How do I transfer to another school?

 You will need to continue to maintain your F-1 status when applying for a transfer.  To transfer, you must gain admission at another SEVP-certified school.  As SEVP has taken over UNVA’s DSO functions temporarily, the new school should contact SEVP to transfer the SEVIS record.

  1. Where can I find more information about transferring?  8 CFR §214.2(f)(8) governs school transfers. The transfer process is a way to electronically transfer SEVIS records and retain the same SEVIS identification number for the student.

 If you are considering transferring, you are advised to investigate the accreditation status of the new university. The government has indicated that it is potentially investigating other institutions which it considers to be “sham” universities.  See paragraphs #13-16 below for more information.

  1. Do I need to file for reinstatement?

 If you have maintained your status, as described in #2 above, then you do not need to file for reinstatement.  However, if you have failed to maintain your status and your SEVIS record is terminated then reinstatement may be necessary. Like a transfer, you will need to gain admission at another SEVP approved school.

 Reinstatement will then have to be sought through an application with 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.

According to 8 CFR §214.2(f)(16) 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 (or demonstrates that 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).  See paragraph #19 below for more information.

 If you will need to seek reinstatement, it is recommended that you consult with a knowledgeable immigration attorney. 

  1. Restoring status through travel and an initial 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.”  See 8 CFR §214.2(f)(8)(i).   If the student chooses this option, he or she will need to pay the SEVIS I-901 fee of $200.00.  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 and no earlier than 30 days before the student’s program reporting date.

Additional obstacles may occur at the port of entry when the student tries to re-enter the U.S.  It is advised that you seek legal counsel if pursuing this option.  The consequences of Customs and Border Patrol (“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. 

  1. Can I change my status to another nonimmigrant status such as H-1B or H-4?

 Yes, if you have not violated your F-1 status and you have an employer willing to sponsor you for the H-1B visa.  Generally, in order to change status to H-1B or H-4 you must maintain your student status, unless you can show exceptional circumstances for being out of status.  You may also go to a U.S. consulate abroad and seek a new H-1B or H-4 visa if you have been out of status.  The risks of doing so should be weighed with a knowledgeable immigration attorney. 

  1. 11.  How can a student ensure that he/ she is in compliance with the F-1 regulations?

 Simply attending a SEVP certified school does not ensure that a student is in compliance with the F-1 regulations.  The student must ensure that he/she maintains student status by following the guidelines in #2 above. 

  1. 12.  Is having a job under CPT in the first semester a problem?

It could be.  Curricular Practical Training (“CPT”) is only available if the employment is an integral part of an established curriculum and if the position directly relates to your major area of study and only when there is a letter of agreement from the employer.

According to the F-1 regulations, a student can take CPT after 1 academic year.  However, an exception to the one academic year requirement may be made for students enrolled in graduate studies that require immediate participation in CPT. 

In recent years, several private colleges (accredited and unaccredited), including UNVA, have allowed students to take CPT in the first semester on the grounds that it is integral to their studies and the program requires immediate participation.  These schools have taken a liberal interpretation of the CPT rules, which appears to be more expansive than that of larger more established schools.  NASABA recommends that students who take CPT before one academic year has passed carefully weigh whether they are following the F-1 regulations. 

  1. What is SEVP Certification?

 SEVP Certification is the process schools go through to receive authorization from DHS to enroll F or M nonimmigrants.  A college or university that is not accredited by a nationally recognized accrediting body may still receive SEVP certification if it can show that its transfer credits are recognized by at least three accredited schools.  8 CFR §214.3(c). 

However, recently we saw the SEVP Certification process exploited by Tri-Valley University where allegedly false information was given about its credits being recognized by other accredited schools.  Students therefore are advised to do their own due diligence in seeking admission at another school. 

  1. What is an accredited school?

Accreditation is an evaluative process  which colleges, universities, or postsecondary institutions may choose to go through that compares their college to established standards.  The goal of accreditation is to ensure that education provided by institutions of higher education meets acceptable levels of quality

  1. What are accrediting agencies? 

Accrediting agencies are organizations (or bodies) that establish operating standards for educational or professional institutions and programs, determine the extent to which the standards are met, and publicly announce their findings.

 

  1. How do you know if an accrediting agency is reputable?

To ensure that a school is accredited by a reputable agency it should be recognized by either the U.S. Department of Education or the Council on Higher Education Accreditation. 

  1. What are my rights if I am contacted by officials with the Department of Homeland Security (DHS), including agents with the Immigration Customs Enforcement (ICE)?

  ICE has a “quasi” police role, and often look like police officers.  Foreign nationals are not required to speak with ICE agents or let them into their homes if ICE does not have a search warrant.  If ICE contacts you, you may try to schedule a time to speak with them which would allow you time to contact an attorney.  

ICE may promise immigration relief but they may not be obligated to keep those promises.

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

  1. 18.  Deportation Proceeding

While we have no specific indication that government officials intend to do so, if a UNVA 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 possibly prevent you from ever returning to the U.S.

 One issue to be concerned with is any allegation of fraud or misrepresentation by the foreign national.  A finding of fraud or misrepresentation 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.  INA §240B.  A voluntary departure would invalidate an existing visa.  INA §222(g).  However, voluntary departure is not available in all cases.

Voluntary departure is preferable to a removal order for a number of reasons.  If an individual is issued a removal order she may be barred from reentering the United States for up to ten years and may be subject to civil and criminal penalties if she enters without proper authorization.  If the individual voluntarily departs within the time ordered by the court, she will not be barred from legally reentering in the future.  In addition, an individual with a removal order is barred from applying for ten years for cancellation of removal, adjustment of status, and other immigration benefits.

A foreign national may request voluntary departure either prior to the conclusion of removal proceedings or at the conclusion of removal proceedings.  It is more difficult to get voluntary departure if the request is made at the end of removal proceedings.

  1. Status vs Unlawful Presence – Basic Concept

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 a SEVP approved school they are in status.  

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 foreign national may be subject to a 3 year bar.  If unlawfully present for over 1 year, the foreign national may be subject to a 10 year bar.

The government has to make an official determination that a student is unlawfully present.  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 #8 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.

  1. Seeking advice and/or retaining an attorney

If you decide you need attorney to assist you in your immigration matter, NASABA recommends that you also do your due diligence in selecting this individual.  Here are a few helpful hints:

–        U.S. Attorney – only attorneys licensed to practice law in the U.S. can give you legal advice.  A foreign attorney that is not licensed in the U.S. cannot give you advice on U.S. laws.  Make sure the attorney you hire is an active member of a state bar.  If you are unsure, ask them for their state bar number.

–        Disciplinary actions – if there are any complaints against an attorney you can find this out by checking with the State Bar association for which that attorney is licensed.  Remember, immigration law is federal law, and an attorney may be licensed in a different state than the one in which they practice.

–        Legal Services Agreement / Engagement Letter – if you retain the Attorney’s services it is a good idea to have a written agreement which sets forth what services the Attorney will be providing you.

–        Copy of File – make sure that you get a copy of anything that the Attorney files on your behalf or receives on your behalf. 

–        AILA Member – Most immigration practitioners are members of the American Immigration Lawyers Association (AILA) as this is a great resource for an immigration attorney to be up to date on new developments.  Check to see if your attorney is an active member. 

–        Promising too much – if it sounds too good to be true, it probably is.  Be wary of attorneys that promise too much, especially for difficult cases.

–        Ethics – if an attorney tells you to lie, you need to find another attorney. Fraud or misrepresentation can result in a permanent bar. 

There are several other considerations including the reputation of the attorney, references, years in practice, publications, recognized expertise, etc.  In the end it will be your choice, but do so by educating yourself. 

LEGAL RESOURCES

NASABA cannot provide a specific endorsement for any of our attorney members.  However, we are in the process of compiling a list of attorneys in the Virginia / D.C. area that may be available to assist students at reduced fees.  Please contact Hassan Ahmad, the point of contact of our member chapter, South Asian Bar Association of Washington D.C., for a list of potential attorneys.  His email address is hma@hmalegal.com, and his telephone number is (703) 964-0245.  Please do your own diligence in selecting an attorney.

Advertisements
No comments yet

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: