As the H-1B cap filing season is well underway and as the filing day of April 1st is approaching fast, a common question by H-1B employers or H-1B candidates is whether an H-1B cap petition can (or should) be filed when the foreign national employee is still completing their degree program and when the degree will not be completed by April 1st. The short answer is that while the H-1B regulations require a degree be completed in order to be used for H-1B filing, there are ways to use previous or partially-completed degree to qualify for the H-1B cap. This option becomes increasingly important as we are facing a situation where, due to high demand, many H-1B candidates will not be selected under the H-1B cap lottery and being able to file a few times, over two or three H-1B cap seasons, becomes a critical advantage.
Background: Supporting H-1B Employee’s Degree Must be Completed by April 1st
The general rule with respect to using educational degrees for H-1B cap filings is that a degree must be completed before April 1st in order for this degree to be usable to qualify its holder for H-1B work visa filing under the H-1B cap. USCIS has clarified that they would accept degrees as completed when all of the courses and degree requirements have been completed by April 1st and that the only outstanding item remaining is the actual graduation ceremony (which is usually later in the spring, most often in May).
While it is possible that some degree requirements can be completed by April 1st (in which case the degree can be used to qualify for the H-1B cap), most often a degree is not completed by April 1st. In this kind of situations, the foreign national (and their employer) does not normally consider the possibility of an H-1B cap filing. However, there are ways in which this can be done, thereby increasing the attempts an H-1B cap petition can be filed, selected under the cap and ultimately approved.
H-1B Cap Filing Based on Prior or Partially-Completed Education
Even when the degree is not completed by April 1st, all is not lost. An H-1B petition normally requires that the position require a bachelor’s degree or higher and that the foreign worker have such a degree. So, if a master’s degree student is working on completing their master’s degree but the degree requirements are not completed by April 1st, and assuming the undergraduate degree is related to the offered position, the H-1B employer can still file a cap H-1B petition on behalf of the foreign national. Yes, the H-1B cap will have to be under the general (65,000 visas) cap as opposed to the master’s (additional 20,000 visas) cap; but it still allows a filing and an extra shot at the cap lottery.
Additionally, USCIS accepts work experience in lieu of missing education. Three years of relevant experience can be used to supplement each missing year of education. So if an foreign worker has three years of completed education but at least three years of related work experience, it may be possible to make an equivalency argument for a bachelor’s degree. This may even allow a foreign student who is pursuing their bachelor’s degree in the U.S. and who has at least three years of relevant experience to make a case for H-1B cap filing on April 1st.
With the high anticipated demand during the H-1B cap season and the anticipated lottery, it becomes increasingly important for H-1B employers and their H-1B visa candidates to take advantage of any available opportunity to increase their chances to ultimately get selected under the H-1B cap. Being able to file under more than once, in two or three, H-1B cap lottery iterations becomes one of the key (and sometimes overlooked) ways to boost one’s chances.
We are hopeful that this article would allow at least some H-1B employers and workers to evaluate the opportunity of filing for H-1B under this year’s cap even if the degree is still in progress and will not be completed by April 1st. Our office has grown as a leading practice in H-1B petitions and other employment-based immigration matters so please do not hesitate to contact us if we can help you in any way. Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.No comments
The OPT Cap-Gap Rule: Extension of Post-Completion OPT and F-1 Status for Eligible Students Applying for Cap H-1B
Spring and early summer are generally busy period for recent foreign college graduates as far as employment immigration is concerned. On one hand, foreign college graduates are either applying for their initial term OPT, their 17-month STEM extensions (if they qualify) or their H-1B work visas under the H-1B cap.
Our office fields many questions from prospective or recent college graduates with respect to their OPT and H-1B options. In this article we will focus on a number of questions relating to H-1B and the “cap-gap” provision allowing students with expiring OPT work permits to continue working subject to a timely-filed H-1B petition under the H-1B cap.
Background on the H-1B Cap
The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA). Upon the creation of the H-1B visa type, INA imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year. This “cap” (or quota) has varied over the past years but is set to 65,000 per year for the current fiscal year starting on October 1st.
H-1B is a nonimmigrant visa classification used by U.S. employers to hire a foreign national who will be employed temporarily in the U.S. in a specialty occupation (generally one which requires a bachelor’s degree or higher) or as a fashion model. Each year, by law, USCIS can approve up to new 65,000 H-1Bs, thereby allowing many private and employers to hire temporary qualified workers. H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities are excluded from the numerical cap (see below for discussion of cap-exempt employers).
There are certain exceptions to the congressionally-mandated maximum of 65,000 H-1B visas per fiscal year. The first 20,000 H-1B visas issued to alien workers who obtained their master’s degree from a U.S. university are exempt from the 65,000 cap; H-1B visas issued to such U.S. master degree holders subsequent to the first 20,000 are then counted against the overall 65,000 cap. Additionally, the cap does not apply to foreign nationals in the U.S. who are in lawful H-1B status and who are seeking to extend their visa or change employers.
What Is “Cap-Gap”?
The current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire, and up to the start of their approved H-1B employment period. This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the F-1 work permit (OPT) and beginning of the H-1B status on October 1st that might otherwise occur if F-1 status was not extended for qualifying students. For example, a student whose OPT is set to expire on July 15th will have a “gap” between this date and October 1st when a new H-1B cap petition would begin (once approved).
How to Invoke the “Cap-Gap”?
Most importantly, an H-1B cap petition must be timely filed on behalf of an eligible F-1 student. This means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B cap acceptance period, while the student’s authorized duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion OPT, and the 60-day departure preparation period, commonly known as the “grace period”).
Once a timely filing has been made, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student’s H-1B petition is selected under the H-1B cap lottery and approved, the student’s F-1 OPT will be considered extended and will continue through September 30th unless the petition is denied, withdrawn, or revoked. If the student’s H-1B petition is not selected under the H-1B lottery or not approved, the student will have the standard 60-day grace period from the date of the rejection notice or their program or OPT end date, whichever is later, to prepare for and depart the United States.
Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.
Is Proof of Cap-Gap Status Necessary?
A student will need to obtain an updated Form I-20 from his or her designated school official (DSO). The Form I-20 is the only document a student will have to show proof of continuing status and OPT, if applicable. The student should go to their DSO with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue an interim cap-gap I-20 showing an extension until October 1st. Students whose approved period of OPT already extends beyond October 1st do not need an interim extension.
In some cases, a student’s SEVIS record will not be automatically updated with the cap-gap extension, in error. In this situation, the student’s DSO may need to add an interim cap-gap extension to the student’s SEVIS record or contact the SEVIS Help Desk to have the full cap-gap extension applied to the record.
Are Expired or Expiring OPT EAD Holders Eligible for Cap-Gap?
For a student to have employment authorization during the cap-gap extension, he or she must be in an approved period of post-completion OPT on the eligibility date which is generally the date of filing of the H-1B petition.
Can Students Travel While Under Cap-Gap Extension?
The regulations at 8 CFR 214.2(f)(13) state that a student who has an unexpired Employment Authorization Document (EAD) issued for post-completion OPT and who is otherwise admissible may return to the United States to resume employment after a temporary absence. However, by definition, the EAD of an F-1 student covered under a cap-gap extension is necessarily expired. Consequently, if a student granted a cap-gap extension elects to travel outside the United States during the cap-gap extension period, he or she will not be able to return in F-1 status. The student will need to apply for an H-1B visa at a consular post abroad prior to returning. As the H-1B petition is presumably for an October 1 or later start date, the student should be prepared to adjust his or her travel plans accordingly.
The OPT cap-gap provisions for F-1 international students can be complex and may apply in different ways in different situations. Additionally, the cap-gap rule only applies if there is a timely-filed H-1B petition under the H-1B cap. While we do not yet know how quickly this year’s H-1B cap would be reached, indications of the heavy interest early this year and last year’s historical data suggest for a very short (5-day) H-1B cap filing window. In fact, we urge our clients and readers to assume that the H-1B cap season will last only five days and to aim for April 1, 2015 H-1B petition filing.
If you wish to start a new H-1B work visa petition under this year’s quota, if you have any questions or concerns about the OPT cap-gap rule or if our office can be of any help, please contact us as soon as possible. Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application, together with helping you navigate through the OPT cap-gap rules and situations.No comments
Many of our readers, and especially those foreign students on F-1 status who are in a technical field, are aware of the regulations which allow holders of Science, Technology, Engineering and Math (STEM) degrees to obtain an additional 17-month OPT work permit extension, in addition to the 12-month post-completion OPT work permit. Understanding the eligibility rules and especially understanding if one’s degree is a STEM degree is critical in planning for subsequent immigration steps, including whether to file for an H-1B petition.
The Immigration and Customs Enforcement (ICE) is the agency tasked with maintaining the STEM degree list and the list has been revised on a few occasions to add additional degrees. Most recently, on May 11, 2012, ICE announced the most recent expansion of the list STEM degree programs. Previously, some degrees were added in May 2011.
Current STEM-designated Programs
Please see the list of STEM-designated programs as of January 2015, as published by the Immigration and Customs Enforcement agency (which has jurisdiction over the Student and Exchange Visitor Program, SEVP). The list incorporates the 2011 and 2012 additions and is current as of the date of this article, according to ICE. We caution our readers to double-check the most current STEM-designated program list by contacting SEVP to ensure that their degree is STEM-designated before applying for or relying on STEM-designation and benefits. Our office can offer phone or in-person consultations to assist in this kind of analysis.
STEM-Designation Has Great Benefits
Why is a STEM designation so important? On April 8, 2008, the Department of Homeland Security published an Interim Final Rule (IFR) titled, Extending Period of Optional Practical Training (OPT) by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions. As a result, a STEM degree allows for a total OPT time of 29 months, compared to only 12 months for non-STEM degrees.
This is important for a number of reasons. Most importantly for many folks — the OPT holder has the chance to apply for a cap H-1B petition two, sometimes even three, times. In a time where the annual H-1B cap is oversubscribed and the available H-1B visas are distributed by lottery, having more chances to apply for an H-1B under the cap is certainly better. Additionally, eligible OPT holders have more time to obtain better skills and this provides greater flexibility in job hunting — employers are more likely to consider a candidate with more experience and longer work authorization term.
Is My Degree a STEM-Designated Degree Program?
The first step is to find the classification number of your degree. The Classification of Educational Programs, a database provided by the Department of Education is helpful in looking up the CIP code for a specific degree. Also, the degree and its CIP code are often listed on the top of page 3 (“Primary Major” line) of a student’s SEVIS Form I-20.
Once the CIP classification of the degree is determined, an F-1 or OPT holder should look at the list of STEM-designated programs as of January 2015 and see if the CIP code of the degree is listed as a STEM-designated program. Finally, the F-1/OPT student should ensure that there are no STEM designation changes – perhaps by consulting SEVP, the university or an immigration attorney.
It should be noted, however, that in some situations the CIP code of the degree on the I-20 does not accurately reflect the degree which the F-1 student completed. Sometimes, there are slight degree variations and changes which may not be reflected in the I-20 record. If the student believes that there is a discrepancy between the actual degree obtained and the degree noted on the SEVIS I-20 form, the student should seek to correct any such discrepancy with the university’s designated school official (DSO) as soon as possible and definitely before filing a 17-month STEM OPT extension application.
The question whether a given degree is STEM-designated has a significant importance and our office handles many inquiries and consultations on this topic. We are hopeful that this article and the current list (as of the date of this article) we are sharing will allow many F-1/OPT students to evaluate their options with respect to 17-month OPT extensions and/or possible H-1B cap filings.
Our office has developed as a leading practice in F-1/OPT/H-1B matters so please do not hesitate to contact us if we can help you in any way. Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.No comments
Our office had received a number of inquiries and we have worked with a number of individuals, universities and their DSOs who had seen a spike in OPT extension (STEM OPT extensions, most often) which were denied by USCIS due to the fact that the F-1 holder had engaged in volunteering or unpaid work during the term of their initial OPT term due to allegedly exceeding the unemployment maximum allowed for OPTs. After a number of inquiries to USCIS were raised, USCIS has announced that such denials were issued in error and will work on reinstating the applications (and status) to those F-1 holders who may be affected.
The USCIS Announcement
USCIS’s announcement is dated February 6, 2014 and states plainly that some 17-month OPT STEM extensions were denied in error. The relevant OPT policy guidance (SEVP OPT 2010 Policy Guidance, Section 7.2.1) states that:
“Unpaid employment. A student may work as a volunteer or unpaid intern, where this practice does not violate any labor laws. The work must be at least 20 hours per week for a student on post-completion OPT. A student must be able to provide evidence acquired from the student’s employer to verify that the student worked at least 20 hours per week during the period of employment.”
STEM OPT extension applications were denied (in error) solely because the USCIS adjudicator made the determination that the F-1 OPT holder exceeded the unemployment allowance (90 days for 1st year of OPT) and violated their F-1 status, thus making them ineligible for STEP OPT extensions. As it was clear and as it is confirmed now by USCIS, it appears that such denials were based on inadequate training and/or misinterpretation of the relevant guidance by USCIS adjudicators.
Was Your STEM OPT Extension Application Denied Due to Volunteering/Unpaid Work?
USCIS has created an avenue available to those whose STEM OPT extensions were denied solely on this ground. The student should contact the Service Center which issued the denial decision. Specific instructions are below:
If a student’s OPT STEM application was denied solely on the basis that he or she intended to work as a volunteer or unpaid intern, the student should contact the Service Center that issued the denial by sending an email message to the applicable dedicated student mailbox (listed below). In the email message, the student should provide his or her full name, as well as his or her USCIS receipt number relating to the denied OPT STEM extension application.
- California Service Center: CSC.StudentEAD@uscis.dhs.gov
- Vermont Service Center: VSC.Schools@uscis.dhs.gov
- Texas Service Center: TSC.Schools@uscis.dhs.gov
- Nebraska Service Center: NSC.Schools@uscis.dhs.gov
We are happy to hear that USCIS, upon making a determination of a pattern of incorrect decisions, has reversed course and has created an avenue to affected F-1 students to reinstate their F-1 status and OPT STEM application. Unfortunately, for many affected individuals this kind of announcement and relief may come too late. For example, some F-1 students whose STEM OPT extensions were denied have already left the US or have moved on to a different status.
Our office stands ready to assist F-1 students who may have been affected by this kind of STEM OPT denial. Please contact us for an evaluation of your case. Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.No comments
It is only Tuesday and this week has already been full of immigration proposals. After yesterday’s announcement for a blueprint for a comprehensive immigration reform, today a group of Senators has released an actual draft bill which picks up where yesterday’s proposal left off with respect to employment-based immigration. Senators Orrin Hatch of Utah, Amy Klobuchar of Minnesota, Marco Rubio of Florida and Chris Coons of Delaware have introduced the Immigration Innovation (I2, or I Squared) Act of 2013 which seeks to increase the H-1B quota, enhance the portability of existing H-1Bs, increase the number of employment-based green cards and allow U.S. students (especially STEM) to obtain green cards faster. See the full text of the proposed bill.
Employment-based Nonimmigrant H-1B Visas
The Immigration Innovation Act of 2013 seeks to increase the H-1B cap from 65,000 to 115,000 and establish a dynamic “H-1B escalator” which would increase the cap based on demand during each H-1B filing season, with a maximum of 300,000. The bill also removes the cap (to unlimited number) from US advanced degree holders (currently at 20,000 per year). Dependent spouses to H-1B visa holders will be permitted to work and increased portability rules will make it easier for H-1B workers to switch employers (creating grace periods after termination, etc.).
Employment-based Green Cards
The bill would enable the recapture of green card numbers that were approved by Congress but were not used in the past. Certain categories of applicants would be exempt from the green card numbers: dependents of employment-based green cards; U.S. STEM advanced degree holders; persons with extraordinary ability and outstanding professors and researchers (under the EB-1 category). The bill would also provide for the roll-over of unused employment-based immigrant visa numbers to following fiscal year so that green cards numbers are not lost. Also, the proposal would eliminate the annual per-country limits for employment-based visa petitioners and also adjusts the per-country caps for family-based visas.
Additional Fees to be Used for U.S. Training Programs
The bill would raise the fees for H-1B and I-140 petitions and the increased fees would be used to support grant programs to the states to promote STEM education and worker retraining.
It should be noted specifically that this is simply a proposed bill, and not a law. This bill, in its current shape, is likely to undergo changes, some of which dramatic, even if it ultimately becomes a law. Since there are a number of immigration proposals circulating at this time in Congress, it is possible that this bill may be folded into a more comprehensive immigration package.
We will certainly follow developments very closely and provide updates. We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about this article.No comments
In the past, USCIS had been somewhat flexible with student status and filing for employment optional practical training work authorization (OPT). More recently, USCIS has been closing those gaps and enforcing the eligibility requirements and filing deadlines more strictly. With this more stringent and literal implementation of the rules, it is imperative that foreign students, educational institution representatives, and employers of these students be aware of these tighter restrictions.
OPT Eligibility Requirements
Most foreign students are eligible for some form of Optional Practical Training (OPT) after completion of a certain educational degree. There are several types depending on the student’s visa status, educational focus, and anticipated program completion date.
Generally, some of the OPT eligibility requirements are:
- Must be a full-time student for at least 1 year prior to OPT;
- OPT can be filed no more than 90 days before the 1 year school mark, 90 days before program end date, or no more than 60 days after program end date;
- OPT may be full-time or part-time, but cannot extend beyond 1 full year of work (with certain exceptions for STEM students, who can benefit from the 17-month STEM OPT extension);
- The student must have valid and active status in SEVIS;
- The employment must be related to the student’s field of study;
- For post-program completion OPT, the employment application (Form I-765) must be filed with USCIS within 30 days of the date the school representative enters the OPT recommendation into the student’s SEVIS record. In addition, the employment application must include the student Form I-20 endorsed by the authorized school representative within the last 30 days or less;
- For STEM OPT, the employment application must be filed before any prior post-completion employment authorization expires; and
- For M visa students, they must apply before the completion of their educational program.
While previously USCIS may have issued a Request for Evidence (RFE) when some of these eligibility deadlines were not met, they are now denying applications which do not meet these required dates after accepting them for review and after holding on to the applications for weeks, or even months. In fact, an updated Form I-20 would no longer suffice to correct a delayed application for post-program completion OPT. The school representative must also correct the student’s SEVIS record before USCIS will approve OPT employment authorization. Because of this possibility of OPT application denial weeks or months after filing, it becomes important to not only file the OPT application well in advance (but within the required timeframes) but to anticipate and be prepared for a possible delay in work authorization.
USCIS Also Targeting Student Status Violations
In addition to adopting a more stringent approach towards reviewing and adjudicating I-765 OPT applications as discussed above, USCIS is also cracking down on student status violations. There are several common mistakes which may cause a student to violate their student status:
- SEVIS is not updated with changes to student’s status and/or program, including a change of address or change of employer (if working pursuant to practical training);
- The student does not monitor their immigration status and is unaware if the U.S. government has not been properly made aware of reportable changes; and
- Unexpected changes such as personal hardship, financial difficulties, medical emergencies, or family emergencies.
While USCIS allows reinstatement of student status in some cases, the student must be able to rectify their status relatively quickly. One of the most important (and often very difficult to overcome) requirements for filing a reinstatement of F-1 student status is that the student should not have been out of status for more than five months (or show exceptional circumstances otherwise). Other requirements for reinstatement of status include that the student must be or will be pursuing full-time student status and must have no history of prior violations, unauthorized employment, or lapse in status.
How Can Our Office Help?
If you are a student or educational facility representative needing assistance with these F-1 student status requirements, OPT processing or student status and reinstatement, please contact us. We would be happy to consult with you and analyze your options for filing or other alternatives, if available. Alternatively, we urge all foreign students and educational representatives to keep in mind that it is their responsibility to maintain visa status and visa sponsorship by following all relevant rules and regulations. Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain related immigration-related news and announcements.No comments
The U.S. House of Representatives passed yesterday (August 1, 2012) by a voice vote a proposed bill which seeks to restrict the ability of certain schools, colleges and universities to sponsor students’ F-1 visas. H.R. 3012 (bill tracker, text of bill) was introduced by Rep. Zoe Lofgren (D-CA) and seeks to amend the F-1 student visa program by restricting access to it by schools which are not accredited.
Details of the Proposed Bill
The bill is fairly simple — it amends the relevant section of the Immigration and Nationality Act (INA) by adding a requirement that only institutions which are accredited by an accrediting agency recognized by the Secretary of Education. As a result, institutions which are not accredited would not be able to continue to be part of the F-1 program and their students will not be able to obtain and retain F-1 status. There is a 3-year grace period after the (possible) passage of the bill.
Significance of H.R. 3120
Many F-1 students would not be affected by this bill as a vast majority of the F-1 sponsor institutions are already accredited (check your institution). However, a limited number of F-1 students may be affected negatively if their institutions is not accredited and if their institutions is unable to pass the accreditation process which can often be fairly rigorous.
Please note that H.R. 3012 is not law yet — it was passed by the U.S. House of Representatives but it must be passed in an identical form by the U.S. Senate and then signed by the President. Considering the limited Senate calendar and the upcoming election, it is possible that the Senate may not take up the bill for consideration for some time. It is also possible that the bill will not be taken by the Senate by the end of this Congress and may have to be reintroduced (and passed again) in the next Congress after the election.
Our office will continue to monitor developments surrounding H.R. 3120 and provide updates to our clients and readers. Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.No comments
As the new school year is underway at many colleges and universities across the U.S., it is interesting to share some statistics and profiles relating to the F-1 foreign student visa program. The data has been released from the Student and Exchange Visitor Information System (SEVIS) as of June 30, 2011. As of June 30, 2011, there were 10,364 SEVIS-approved schools and 784,481 active F-1 students.
Approximately 35% of all of the 10,364 SEVIS-approved schools were located within California, New York, Florida, Texas and Pennsylvania. Only eight schools have more than 5,000 active students, and out of the 10,364 SEVIS-approved schools, approximately 6,700 have less than 10 students (approximately 3,700 schools have no foreign students).
Among the top schools were the City University of New York with 10,000 active students, University of Southern California with 7,600 students, Purdue University with 7,000 students, University of Illinois with 6,700 students and Columbia University with 6,500 foreign students.
Country. China is the country with the highest number of active foreign students – 150,899. South Korea is second with 101,652 and India is third with 99,180.
Program of Study. Business Management, Marketing and related is the most common major – over 160,000 active F-1 students pursue it. Second is Engineering with 106,000 active students.
Degree. Over 69% of all active students are enrolled in Bachelor’s (234,465), Master’s (192,966) or Doctoral (116,372) degrees. The number of foreign students in English-language programs is 93,603 and the active students pursuing Associate degree are 73,504.
State of Study. More than half (55%) of all active students go to schools within seven states – California, New York, Texas, Massachusetts, Illinois, Florida and Pennsylvania.No comments
We have many confirmed reports that yesterday, July 28, 2011, the University of Northern Virginia’s (UNVA) campus in Annandale was raided by Immigration and Customs Enforcement (ICE) and Federal Bureau of Investigations (FBI) agents, seeking and seizing documentation relating to UNVA’s issuance of F-1 foreign student visas and UNVA’s compliance in the F-1 visa program.
According to reports, federal agents seized significant amount of boxes with paper, hard drives from administrative computers and even waste baskets. ICE confirmed the UNVA raid in a statement, “Today, officials from ICE’s Student and Exchange Visitor Program (SEVP) served UNVA with a Notice of Intent to Withdraw (NOIW) UNVA’s authorization to admit foreign students. UNVA students should call the SEVP Response Center at 703-603-3400 for guidance.”
Similarity to TVU Raid
The UNVA raid of yesterday is very similar to the raid federal agents conducted on Tri-Valley University (TVU) earlier this year. We have written in the past about TVU’s story and the importance of maintaining good “F-1 practices” both by the school and by the foreign students whose status and ability to remain in the U.S. is affected by the closure of their school. Some of our readers may remember that after TVU was raided, all of its F-1 foreign students were deemed to be out of status and the TVU president was indicted on a number of federal offenses. While there are no charges filed, the UNVA raid bears similarities to the TVU raid and subsequent closure. It is important to note, however, that as of now, UNVA continues to operate normally and students can continue to attend classes.
UNVA F-1 Students May Need to Seek Alternatives
While it is very early in the investigation process, indications are that ICE would seek to revoke UNVA’s ability to participate in the SEVP program, which would mean that all F-1 students currently enrolled in UNVA would be out of status. If ICE takes the same approach as it did with TVU and if ultimately UNVA is closed down, it is possible that current UNVA students may have very difficult time even transferring their I-20 to a new school.
There are approximately 2,400 or so F-1 international students enrolled in UNVA and the U.S. government has indicated that those UNVA F-1 foreign students who are not attending classes and are out of status and must leave immediately. Students who are attending UNVA and are in full compliance with their F-1 status (i.e. attending classes and not otherwise violating the terms of the F-1 program) should be still considered to be in valid status, at least for now and for as long as UNVA’s ability to sponsor F-1 visas is not revoked. As of now, UNVA F-1 students should also be able to transfer their SEVIS I-20 record to another school.
It the TVU story provides any history and a roadmap to ICE’s approach, it is likely that if ICE/FBI find irregularities of the kind found at TVU, then UNVA’s ability to admit foreign students would be revoked and the 2,400 or so foreign students’ status would be terminated. Our office will continue to monitor developments on this case as it may affect a very high number of individuals and will continue providing updates on our website and through our weekly newsletter.
We have also committing the resources to providing individual phone consultations to allow affected F-1 students to assess their options. We offer fast and secure online booking of legal consultations. We also offer same-day urgent phone consultations.No comments
We have written in the past about the Tri-Valley University and how it affected a high number of F-1 international students by engaging in alleged unlawful practices and immigration fraud. The Tri-Valley University story is worth following because it highlights, from the perspective of the foreign students and nationals, the importance of maintaining good immigration compliance and records, not only with respect to F-1.
As a result, we continue to provide updates on the Tri-Valley University story.
Tri-Valley University President Indicted
A federal grand jury has indicted earlier this week the President of Tri-Valley University, Susan Xiao-Ping Su. To be clear, an indictment is simply a charge by the government and until proven guilty, Ms. Su is presumed innocent.
She is accused of engaging in a two-year scheme to defraud the Department of Homeland Security (DHS) by submitting phony documents in support of Tri-Valley University’s applications to admit foreign nationals on student visas. The indictment further alleges that after obtaining such approvals, Su fraudulently issued visa-related documents to student aliens in exchange for “tuition and fees.”
The indictment alleges that in carrying out the scheme, Su is accused of making multiple false representations to DHS through Tri-Valley University’s use of the Student and Exchange Visitor Information System (SEVIS), which the U.S. government uses to monitor the “F-1″ student visa program. Through her false representations, Su was able to unlawfully obtain and issue F-1 visa-related documents without regard to the students’ academic qualifications or intent to pursue a course of study required to maintain a lawful immigration status.
According to the indictment, Su admitted and maintained foreign students in exchange for tuition and other payments. In furtherance of the F-1 visa scheme, Su also allegedly harbored multiple Tri-Valley University student-employees to assist her in making the false representations to SEVIS. The indictment further alleges the defendant engaged in multiple money laundering transactions totaling more than $3.2 million using proceeds she derived from the visa fraud scheme.
The 33 counts contained in the indictment carry maximum penalties ranging from one to 20 years imprisonment. The charges include wire fraud; mail fraud; visa fraud and conspiracy to commit visa fraud; use of a false document; making false statements to a government agency; alien harboring; unauthorized access to a government computer and money laundering.No comments