On Jan. 21, Immigrations and Customs Enforcement (ICE) charged Tri-Valley University in Pleasanton, Calif., with violating United States immigration laws by making false statements to the Department of Homeland Security. ICE filed a complaint in federal district court in San Francisco labeling the university a “sham” educational institution and accusing it of sponsoring illegal visas for hundreds of students. The complaint indicates that the university offered long-distance classes, placed no restrictions on students securing immediate gainful employment and failed to comply with the terms and conditions of the F-1 student visa program.
ICE’s decision to shut down the institution has cast a cloud of suspicion over the immigration status of an estimated 1,555 students, nearly 90 percent of whom are of Indian origin. The agency has asked each student of the university to report to the nearest ICE office, and has established a hotline (415-844-5320) and e-mail address (SFRHSIFraud@dhs.gov) that students can contact for further guidance. Students are also free to consult with immigration attorneys for guidance on how to proceed.
The immediate concern for many students is that they will be removed from the country. Notorious pictures of a few students who have been shackled and have had to post bond while ICE reviews their cases have been published, raising an outcry in the Indian-American community. Removal or deportation is not an inevitable outcome of this situation, however. Among the options available to students is “voluntary departure” from the U.S. ICE can grant voluntary departure without conducting proceedings in immigration court. ICE can grant the affected individual a maximum of 120 days for voluntary departure through issuance of a formal notice on Form I-210. Subsequently, if an individual agrees to voluntary departure and then fails to do so, ICE can impose fines or restrict re-entry to the U.S. for 10 years.
While voluntary departure may be the best option for some, affected students may also be able to change to another immigration status (change of status), or, in rare instances, apply for permanent residency on a qualifying basis (adjustment of status). ICE has indicated that it will consider such applications on a case-by-case basis. For example, students with family ties to the U.S., such as a spouse on an H-1B visa, could change to H-4 status by filing the I-539 form. Students who held a valid status in the U.S. before admission to Tri-Valley University may also be able to change back to the same status, depending on their circumstances.
The success of such an application will depend on whether the student has presented a legitimate basis for approval, and whether they present a “good faith” or legitimate situation explanation where ICE can conclude that culpability for immigration fraud should not extend to the student. While ICE is not going to permit blanket reauthorization of Student and Exchange Visitor Information System (which would permit all students to simply transfer to another educational institution) or change of status in all cases, ICE will evaluate upon presentation whether a student has a legitimate basis for remaining in the U.S before initiating deportation proceedings.
Several questions remain unanswered. It is not clear exactly how ICE will determine whether a given student’s case is in “good-faith” and demonstrates a lack of culpability. Secondly, if ICE were to initiate removal proceedings, whether immigration courts would side with students arguing that they were unaware of the facility’s violation of immigration rules is also an open question. The answers to these questions are likely to be very dependent on individual facts.
Moreover, the situation continues to develop. The Government of India is advocating on behalf of the students through the consulate general in San Francisco. This situation affects Indian nationals and other foreigners in Chicago as well. Individuals living in metro centers such as Chicago were taking long-distance classes at the facility, and it is critical that such students immediately ensure that their immigration status is lawful.
The longer one’s immigration status remains uncertain, the greater the risk that legitimate options for changing status will be restricted. Extended unauthorized stays could lead to restrictions on an individual’s ability to re-enter the U.S. in the future. This would be the worst outcome for students, many of whom were caught up in a scam of which they had limited understanding. This case also highlights how important it is for every foreign national to ensure that an educational institution is legitimate before deciding to enroll, as the immigration system presents an entirely different set of risks.
Tejas Shah is a practicing immigration lawyer in Chicago. He chairs a free monthly pro bono legal clinic at the Indo-American Center of Chicago. He can be reached at tejasshah1980@gmail.com
