Tag Archive for: SEVIS

Cyrus Mehta

DHS Reverses Course, Restores Student SEVIS Records—But Future Remains Uncertain

/0 Comments/in /by

In the wake of a wave of dozens of lawsuits and emergency court orders following sudden revocations of the visas of foreign students and scholars and deletion of thousands of Student and Exchange Visitor Information System (SEVIS) records by the Department of Homeland Security (DHS) without notice or explanation, which have thrown foreign students’ lives into chaos, the agency suddenly reversed course on April 25, 2025, and restored many foreign students’ SEVIS records, along with their legal status. 

The administration sent out mixed signals, however, as DHS officials were quoted as saying that this action was temporary while the agency worked on a new, unspecified policy. Tricia McLaughlin, a DHS spokesperson, said, “We have not reversed course on a single visa revocation. What we did is restore SEVIS access for people who had not had their visa revoked.” A statement from a government attorney in one of the lawsuits said, “ICE is developing a policy that will provide a framework for SEVIS record terminations. Until such a policy is issued, the SEVIS records for plaintiff(s) in this case (and other similarly situated plaintiffs) will remain Active or shall be re-activated if not currently active and [U.S. Immigration and Customs Enforcement] will not modify the record solely based on the NCIC finding that resulted in the recent SEVIS record termination.”

“It is good to see ICE recognize the illegality of its actions canceling SEVIS registrations for these students. Sad that it took losing 50 times. What we don’t yet know is what ICE will do to repair the damage it has done, especially for those students who lost jobs and offers and had visas revoked,” said Charles Kuck, an attorney for some of the foreign student plaintiffs. Some affected students have already left the United States, while others are in hiding or not attending class, according to reports. 

Colleges and universities have had to deal with the uncertainty and other effects of these actions on their students, scholars, and programs; their ability to conduct research; and concerns about whether U.S. universities will be able to attract top talent in the future.

Although many students can heave a sigh of relief and return to their classrooms, not all the terminations have been restored, and we know students in F-1 status waiting with baited breath for similar positive action. 

My colleague Jeff Joseph, ponders in a LinkedIn post:

“What remains unresolved, unfortunately, is the shrapnel that remains from this illegal action: 

(1) SEVIS has been restored, but the visas were also revoked as a result of the illegal SEVIS termination, and , guess what? Visa revocations are NOT subject to judicial review, so there may be no way to challenge that (although I am looking for brilliant minds to brainstorm with me on this); 

(2) The only way to challenge the visa revocation is in removal proceedings, but it is not entirely clear how a student would challenge a DOS determination in immigration court. The jurisdiction of the judge over a DOS determination is not entirely clear; 

(3) When your visa is revoked, you become deportable. So, all 4,700 of these students are still subject to arrest, transfer to Louisiana or Texas, detention, and deportation; unless we can figure out how to resolve number 3 above, this problem will haunt these students; 

(4) It is great that ICE is creating a policy about how and when they can terminate SEVIS and all, but that, itself, is illegal. ICE can’t create rules that moderate conduct and create penalties without doing so through formal rulemaking and notice and comment. So, creating this policy may solve part of the TROs, but attorneys will just amend the complaints to challenge the rulemaking power of the agency as well as the fact that it is ultra vires to when ICE is allowed to terminate status in the statute. They can’t create new reasons to terminate status that are not statutory; 

(5) Is SEVIS status or not? ICE has taken inconsistent positions on this in litigation and in their own public facing guidance and in prior litigation. The Courts want to know. DSOs want to know. Employers want to know. Students want to know; and

(6). Will the period between when the students registrations terminated and now considered lawful status? If not, that would impact future applications for change of status. Will USCIS recognize what ICE does in SEVIS and honor the reinstatement of status nunc pro tunc?

As you can see, we stopped the bleeding, but still need to deal with the surgery.”

Cora-Ann Pestaina

USCIS Denying Change Of Status For F-1 Students With Over 12 Months Of Curricular Practical Training

/0 Comments/in /by

An F-1 student who has received more than 12 months of Curricular Practical Training (CPT) may be found by United States Citizenship & Immigration Services (USCIS), to have violated F-1 status and thus ineligible to be granted a change of status in the US. This is yet another disturbing trend that we first mentioned in an earlier blog where we indicated that USCIS had started challenging F-1 maintenance of status through CPT by issuing Requests for Evidence on pending H-1B petitions requesting a change of status in the US.

Essentially, 8 CFR § 214.2(f)(10) provides that a student may be authorized a total of 12 months of practical training, and becomes eligible for another 12 months when the student changes to a higher educational level. Under 8 CFR § 214.2(f)(10)(i), however,  “students who have received one year or more of full time curricular practical training are ineligible for post-completion academic training.” Note that the inclusion of “academic training” appears to be an obvious typographical error, and it ought to have been “practical training” when the rule was last promulgated on 12/11/2002. [revised 10/25/2018] This could clearly be interpreted to mean that a student can receive more than one year of CPT and, if so granted, this student would simply become ineligible to receive any practical training after graduation. This appears to have been the prevailing interpretation by all government agencies and CPT has continued to be routinely granted by Designated Student Officers (DSO) through the Student and Exchange Visitor Information System (SEVIS) that is administered by Immigration and Customs Enforcement (ICE). Enter the new USCIS in the era of Trump. Suddenly, USCIS has begun to interpret the regulations to mean that a student may only be granted a total of 12 months of any type of practical training. This, despite the fact that ICE, its sister agency, authorized more than 12 months of CPT. USCIS is choosing to completely disregard the unmistakable indication in 8 CFR § 214.2(f)(10)(i) that students may legitimately receive “one year or more” of CPT.

It is painfully obvious that the intent behind the regulation was only to prohibit students who had received more than 12 months of CPT from then also receiving Optional Practical Training (OPT) after graduation. The intent was not to penalize a student for receiving more than 12 months of CPT. First, the student could not receive more than 12 months of CPT if the CPT weren’t actually granted by a school DSO and entered into SEVIS. Accordingly, if there were any violation, it should be on the part of the school and not the student. The student should not be punished for failure to maintain status when that student followed all the appropriate steps to maintain status. Second, why is USCIS making a determination that such a student failed to maintain status when ICE is the agency that administers the Student and Exchange Visitor Program (SEVP)? If ICE has not determined that a student failed to maintain status and if SEVIS indicates that the student is currently in status, then USCIS ought to acknowledge that. If there had truly been a violation of status then SEVIS would have so indicated.  And third, the regulations at 8 CFR § 214.2(f)(10) are simply outdated. In March 2016, the Department of Homeland Security (DHS) amended its F-1 student visa regulations on OPT for certain students with degrees in science, technology, engineering, or mathematics (STEM) from SEVP-certified and accredited U.S. colleges and universities. Specifically, the final rule allows such F-1 STEM students who have elected to pursue 12 months of OPT in the U.S. to extend the OPT period by 24 months (STEM OPT extension). See 8 CFR § 214.2(f)(10)(ii)(C). Perhaps DHS could have also amended the regulations and removed all outdated sentences. Unfortunately, USCIS is now seizing upon such a sentence and using it to launch another attack on F-1 students.

In the case of the H-1B petition, USCIS can approve the underlying H-1B but deny the request for a change of status. In order to obtain H-1B status, the student would need to leave the US and apply for an H-1B visa at a US Consulate or Embassy abroad. At this point in time, upon receipt of a USCIS denial of a request for a change of status on an H-1B petition, the F-1 student would only have accrued unlawful presence from August 9, 2018 under USCIS’ unlawful presence policy for F, J and M nonimmigrants. Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. See INA § 212(a)(9)(B)(i)(I) & (II).  Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled, are permanently inadmissible. See INA § 212(a)(9)(C)(i)(1). Very few students will trigger the permanent bar as they generally do not try to reenter the US without being admitted or paroled.   Students in receipt of a denial of a change of status can take advantage of the current grace period until February 5, 2019. However, if the student departs the US later than February 5, 2019, he or she will be barred from re-entering for 3 or 10 years.

So what can be done? More so than ever before, F-1 students really need to be proactive about their maintenance of status and need to seek legal advice in the event that any rules are unclear or even just to ensure that they are on the right track. It will not be enough to rely on the DSO’s advice as the student will be the one punished in the end. But the bottom line is that this USCIS policy must be challenged in federal court! It is simply unconscionable to inflict the 3 and 10 year bars on a student who has diligently sought to maintain status in the US.