After the September 11 tragedy, student visa holders have been under the watchful eye of federal agencies. The Department of Homeland Security (DHS) is diligently enforcing its own rules against student visa violators and schools who abuse the immigration process on foreign students.
While China has the most number of foreign students actively in U.S. schools, there are also quite a good number of Filipino students. Just like any other nonimmigrant, it is not unusual to encounter cases of Filipino student visa holders who were victims of unscrupulous school owners to the detriment of their lawful immigration status.
The Immigration Customs and Enforcement (ICE) is the DHS agency that administers the student visa program. Last week, ICE published a report that an owner of a school in New Jersey, PC Tech Learning, admitted to having committed widespread foreign student visa fraud. The owner, Somalingam , conspired to obtain student visas for foreign students even if they were not eligible for the visas. He also did not report to DHS for termination a student’s visa status despite the failure by its students to maintain their visa status. The school owner confessed to “conspiring to commit visa fraud and conspiring to conceal and harbor illegal aliens for financial gains which carry a penalty of 10 to 15 years of imprisonment”.
While problem school owners may be subjected to investigation and face subsequent criminal liabilities, what about the students who encounter visa problems due to the fact that they unknowingly enroll with the problem school such PC Tech Learning? Will they be removed from the United States? Are there other options for the student victims of these schools?
Maintaining Student Visa Status
Considering that foreign students are strictly monitored, any holder of a student visa (F1 or M) must avoid violating visa status. The purpose of receiving a student visa is to pursue an education in the United States. If the student is not enrolled and is in the United States on a student visa, the ICE and the Customs Border Protection (CBP) will be able to determine this immigration violation through the Student and Exchange Visitor Information System or SEVIS. Under this system, schools are required to provide regular electronic reports to ICE on each student. SEVIS houses all the information about students and this information is accessible to ICE, the U.S. Citizenship and Immigration Services, U.S. Embassies and CBP at all ports of entry. Hence, if the student is not enrolled in school or fails to pursue their studies while on student visa all these agencies are notified through the SEVIS. Hence, a student visa holder who is travelling back to the United States after a brief summer trip to Manila may be held at the port of entry if there is a flag on the SEVIS record. Usually a red flag is generated if there is a termination of studies or any violation of visa status.
Abuse by School Owner
One must be vigilant in choosing an educational institution to enroll in. The owner of the PC Tech Learning abused the visa system by not updating SEVIS despite the termination of studies of its enrollees. As long as the tuition was paid, he did not report the termination of its student visa status, which is a clear violation of the SEVIS rules.
Other common violations of schools include allowing the student to engage in employment that does not comply with the regulations. Problems may also arise with schools if they allow the foreign student to take a high number of classes online. There is a limit on the number of online classes that a student visa holder may take. No more than one online class not exceeding three units can be taken during each academic term. Failure to take a full course load without the permission of the Designated School Official (DSO) is also a common violation of student status. There are only enumerated grounds in the law that exempts one from taking a full course load every semester.
Limited Employment Authorization
A student visa holder is expected to have the financial ability to pay his tuition and daily sustenance. Proof of financial ability through an Affidavit of Support is usually submitted to the consular officer before the student visa is issued. When the student arrives in the United States, he is expected to take on a full course load and not engage in unauthorized employment. The employment may be authorized only in certain circumstances. The student may engage in Curricular Practical Training (CPT) and Optional Practical Training (OPT). The CPT employment will be authorized only if the student has been enrolled in a program for one full academic year or the employment is a requirement of the graduate program. A student may be granted OPT for one year usually post graduation.
A student visa holder who has a valid student visa stamped on his passport is not a guaranteed a smooth entry at the port of entry if there are violations of the visa status. The foreign student must understand that there is always the option for reinstatement of student visa if the violation occurred within the last five months. As soon as the student visa is reinstated, the student will be back in status. If in the event that the student no longer wish to pursue studies but was a victim of an unscrupulous school owner, he may wish to consider changing nonimmigrant status but must explain the circumstances of being a that he was a victim. Otherwise, the best approach is careful planning and being diligent in the choice of schools.
(Atty. Lourdes Tancinco may be reached at law@tancinco.com or at 721 1963 or visit her website at tancinco.weareph.com/old)
