Lawyers Skeptical of Trump DOJ Claim on Foreign Students’ Status

The Trump administration is arguing in federal courts that termination of thousands of international students from a federal database has no impact on their lawful status in the US—a stance that’s been met with skepticism by immigration attorneys.

The government’s claims come as students have filed dozens of lawsuits challenging the abrupt termination of their records, which put their F-1 status and employment authorization in doubt. Attorneys warn that students and employers could face consequences if they continue working after termination from the database maintained by US Immigration and Customs Enforcement.

The administration’s argument that removal from the Student and Exchange Visitor Information Systems database won’t affect a student’s lawful status is disingenuous, said Kerry Doyle, an attorney at immigration law firm Green & Spiegel and counsel in one of the suits.

“The student can still go to classes. You can be undocumented and go to classes,” said Doyle, a former official at ICE and the Department of Homeland Security. “But there’s a whole host of things you have the ability to do in status that you lose with a terminated SEVIS record.”

An active record in the ICE database is what allows foreign students on F-1 status to work in labs on campus, seek post-graduate employment in their field of study through a program known as Optional Practical Training, or change to an H-1B status for specialty workers with at least a college degree, she said.

International students on F-1 status and their employers can only learn about issues with SEVIS records if notified by their college. In those cases, Doyle and other attorneys are advising clients that students should stop working if their records are removed, despite those government statements.

A SEVIS termination doesn’t have a clear purpose if it doesn’t reflect a loss of status and the government hasn’t added any clarity on why the records are being canceled, said Aaron Blumberg, a partner at business immigration firm Fragomen, Del Rey, Bernsen & Loewy LLP. That’s having real-world consequences, he said.

“Employers are not certain whether students can continue working on employment grants tied to terminated records and as a result, many students are being placed on administrative leave while these issues are resolved,” Blumberg said.

Lawfulness Questions

International students have filed nearly 40 lawsuits in recent weeks challenging the termination of their records, an unprecedented step by DHS that affects their ability to work legally or change to another visa status. Nearly 5,000 students have been affected so far, the American Immigration Lawyers Association estimates, raising fears they could be targeted for deportation before completing degrees or securing a new status.

Their lawsuits allege the Trump administration violated its regulatory authority and due process to remove the records without notice. Courts in at least 10 cases so far have entered orders to restore the students’ records.

The government has responded in a handful of cases that there’s been no harm to students because dropping them from the database doesn’t affect their legal status.

Andre Watson, an assistant director at Homeland Security Investigations, a DHS law enforcement agency, said in a court hearing this week that terminating a student’s record flags a potential issue to school officials.

But “this action in itself, it doesn’t terminate his nonimmigrant status at this point,” he told the District Court for the District of Columbia. “It doesn’t.”

Watson has made the same statement in declarations in cases at multiple federal courts. On Thursday, a federal judge in Detroit denied a temporary restraining order, saying he couldn’t couldn’t conclude whether termination of a record in the SEVIS database is equivalent to termination of F-1 status based on the government’s arguments.

But having a SEVIS record is “an integral part of F-1 status,” said Steven Brown, a partner at Reddy Neumann Brown PC who has filed several lawsuits on behalf of foreign students.

Working without authorization would disqualify international students for benefits in the future. And it’s unclear if US Citizenship and Immigration Services would adopt ICE’s position if a student seeks a benefit like H-1B status, Brown said.

“We have pitched to ICE multiple times that if all of this doesn’t matter, why not reinstate so we can all go home?” he said. “ICE doesn’t want to do that.”

Students on F-1 status can work for up to three years in the US after completing degrees in science, technology and engineering fields. Many have had employment disrupted by SEVIS record terminations, including some in key roles, creating workforce issues for employers.

While they can acknowledge due process issues with the terminations of status, “their hands are tied,” said Sarah Hawk, a partner and immigration and global mobility chair at business law firm Barnes & Thornburg LLP.

Reached for comment about Watson’s statements, DHS didn’t respond to requests for clarification. A senior agency official said that it regularly checks SEVIS records for compliance. Individuals in the US without lawful status “may be subject to arrest and removal,” the official said.