US: Immigration authorities set out the legal basis for revoking student visa status
- An internal government memo sets out the legal basis that would allow immigration officials to revoke the visa status of foreign students in the US, and even to initiate deportation proceedings
- If implemented, the new policy set out in the memo would essentially allow the government to remove students from the US at will
As we reported recently, widespread reports emerged in April that US Immigration and Customs Enforcement (ICE) officials had been terminating the visa status of international students in SEVIS (the Student and Exchange Visitor Information System). The system is open to both US college and government officials and it was those staff members in institutions around the country who first sounded the alarm. In the course of their normal work within SEVIS, educators began to notice that students' visa status was being cancelled by ICE officials without notice, explanation, or the chance for students to defend themselves.
At the peak of that revocation activity, it was estimated that nearly 5,000 student records had been affected.
Following a wave of legal action from institutions, peak bodies, and students, ICE moved in late-April to restore the visa status of any affected students.
However, the US administration has also taken steps to further establish its legal entitlement to revoke student visa status via SEVIS, and even to deport students whose visa status in the US had been withdrawn.
In a 28 April court filing, US government attorneys appended an internal memo that had been sent to all SEVP (Student and Exchange Visitor Program) personnel on 26 April.
The memo sets out that, "A terminated record in SEVIS could indicate that the non-immigrant no longer maintains F or M status," and that, "SEVP can terminate records for a variety of reasons, including, but not limited to the following:
- Exceeded Unemployment Time
- Failure to Comply with I-515A
- Failure to Repay the I-901 Fee Chargeback
- Failure to Report While on OPT
- No Show
- School Withdrawn
- Violation of Change of Status Requirements
- Change of Status Approved
- Evidence of a Failure to Comply with the Terms of Non-immigrant Status Exists
- US Department of State Visa Revocation (Effective Immediately)"
The memo summarises the government position as, "When SEVP has objective evidence that a non-immigrant visa holder is no longer complying with the terms of their non-immigrant status for any reason, then the SEVIS record may be terminated on that basis." It also asserts that, "Pursuant to INA § 221(i), the U.S. Department of State (State) may at any time, in its discretion, revoke an alien’s visa…When [the State Department] revokes an alien’s visa with immediate effect, ICE should take steps to initiate removal proceedings."
Those points refer to two new bases for revoking visa status as outlined in the memo. They appear at the end of the bulleted list above, and each represents a new type of challenge or risk for foreign students in the US. First, the "failure to comply" provision is vague and relies on government discretion. Second, a visa revocation issued by the State Department is not subject to court challenge, and is expected to trigger a "removal" (i.e., deportation) process.
The bottom line in all that is that if the new policies outlined in the memo are implemented, they would essentially allow the US government to deport affected students at will.
"The legal situation for international students and scholars who have had their student visas revoked and/or their Student and Exchange Visitor Information System (SEVIS) records terminated – and for those who are worried that may happen – continues to shift in unpredictable and confusing ways," says an explanatory commentary from NAFSA. The organisation cautions, however, that, "The document cannot yet be regarded as US Immigration and Customs Enforcement's (ICE) new official policy on SEVIS record terminations."
Speaking to NBC News, immigration attorney Steven Brown said that the policy outlined in the memo "goes against at least 15 years of SEVP guidance." He adds, "Historically, the Department of State has revoked visas for many reasons. But it doesn’t impact your non-immigrant status in the US. It’s just now they’re trying to do that part of it [as well].”
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