US: New ICE memo puts reinstated international students in danger zone again
International students whose
SEVIS
records were recently restored may find themselves in precarious situations again due to a newly released internal memo from Immigration and Customs Enforcement (ICE), The Times of India reported on May 1. The
ICE
has not 'unrevoked' the SEVIS registration back to the original date of the error (the date when the record was terminated), ToI's report (by Lubna Kably) said quoting Charles Kuck, a founding partner at Kuck Baxter, an immigration law firm.
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"Instead, they reinstated it effective April 24. As a result, these international students now have a gap in their SEVIS records, which, according to ICE's updated policy, places them out of status during that period,' it said.
Being classified as out of status can have severe repercussions. Such consequences may include a prohibition on re-entry for a specified duration (either 3 or 10 years), potential deportation, and complications with future visa applications. A memo reviewed by TOI outlines specific instructions for Student and Exchange Visitor Program (SEVP) managers regarding the termination of SEVIS records.
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Termination can occur for various reasons, including failure to report employment while on Optional Practical Training (OPT), approval of a change of status from F-1, non-compliance with F-1 visa requirements, withdrawal from an educational institution, and 'revocation of a visa by the Department of State (DOS).'
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The memo specifies, 'A terminated record in SEVIS could signify that the non-immigrant no longer holds F or M status.' F visas are designated for academic studies, while M visas are intended for vocational training.
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It is important to note, however, that termination does not automatically lead to negative consequences. This interpretation has faced legal challenges, leading several district courts to grant temporary restraining orders in favor of international students.
According to the memo, ICE may undertake additional investigations or commence removal proceedings following a SEVIS termination.
Moreover, the memo indicates that 'DOS may revoke an alien's visa at any time, at its discretion.' The DOS can consider negative information provided by ICE and other U.S. law enforcement agencies when deciding on visa revocation for an individual. If DOS revokes a visa immediately, ICE is instructed to take measures to initiate removal proceedings.
The memo also asserts that should DOS revoke a non-immigrant visa with immediate effect, SEVP is mandated to terminate the SEVIS record since such a revocation can serve as grounds for removability.
Greg Siskind, founding partner of Siskind Susser, an immigration law firm, said, 'We anticipate that many individuals who were reinstated will once again experience SEVIS terminations. Essentially, ICE has indicated that they will terminate records whenever DOS revokes a visa. Furthermore, DOS may revoke a visa for vague reasons without providing due process to explain the rationale behind the revocation. The
Trump
Administration relies on the argument that DOS's decisions are not subject to judicial review.'
As previously reported by TOI on April 26, the SEVIS records of some international students that had been terminated suddenly appeared as 'active.' SEVIS is the online information system utilized by U.S. agencies to track and monitor international students throughout their studies.
Following the SEVIS terminations that began in late March and early April, many students, particularly those from India, were advised by their Designated School Officials (DSOs) to leave the United States. Some students chose to remain and have since pursued legal action.
During various court hearings, ICE officials claimed that the agency was restoring the SEVIS records and was in the process of developing a policy framework for SEVIS record terminations. 'Until such a policy is issued, SEVIS records will remain active or will be reactivated. ICE will not alter the SEVIS records solely based on the National Crime Information Center (NCIC) findings that led to the recent SEVIS terminations…' the agency stated.
It may be noted here that the NCIC is a central repository for crime-related data maintained by the Criminal Justice Information Services Division (CJIS) of the FBI, providing access to various US law enforcement entities.
However, the newly issued ICE memo has introduced additional complexities. Key questions now confronting international students include whether the SEVIS reactivations will be treated as retroactive, whether the time between termination and reinstatement is considered unlawful presence, and whether students still face the risk of detention or deportation.
Immigration attorneys anticipate that class action lawsuits and individual legal actions will be initiated in the coming days to seek clarity on these issues.
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