Why are some foreign nationals receiving visa revocation email from the US Consulate in recent weeks?
Foreign nationals on F-1 and H-1b status in the United States and those holding the same visa outside abroad have received visa revocation email from US Consulate or Embassy in recent weeks. In the email, the consulate informs them that their visa has been cancelled under INA 221(i), which grants Department of State the discretion to revoke visa. The common clue among these individuals who received the visa revocation email is that they all have been involved with consultancy firms that provide them with job offer to stop the 90/150 day unemployment days without requiring the employee to go to work or providing them with meaningful training. Essentially, the job offer was fraudulent and for the purpose of preventing OPT students from accruing unemployment days. Eventually, these seemingly small consultancies firms got too greedy and "employed" more than a thousand students, and they drew the attention of Department of State. Take in mind that fulfilling immigration physicals exam requirements is mostly requested for Visa renovation process.
Does the fact that I receive the visa revocation email mean that my nonimmigrant status in the United States (F, H, L, etc.) is now terminated?
No. Visa revocation means that the visa in the recipient's passport is now revoked. This simply means that the recipient cannot use the visa to re-enter the United States. It is unclear, however, if recipient has two visas (F and H) in their passport, which one was actually revoked or both. In any event, we do not advise clients who received the email to travel internationally unless they are going to reapply for their next visa to re-enter the United States. Given consulate closure and political uncertainty toward F-1 OPT, H, and L, we recommend that clients do not travel until the end of 2020 when the political climate becomes more stable and consulates reopen.
Should I worry that my nonimmigrant status would be terminated in the United States after I receive visa revocation email?
If you are on F-1 OPT status - Your F-1 visa is now revoked. Your SEVIS should still be active. SEVIS is controlled by Immigration Custom Enforcement, an agency under Department of Homeland Security. Visa issuance (and revocation) is controlled by the US Consulate / Embassy, which is under Department of State. They are separate federal agencies that have different rules and regulations. Therefore, visa revocation does not immediately lead to SEVIS termination by ICE. It is unclear whether ICE would initiate SEVIS termination. It is possible that ICE will simply do nothing because they cannot tell which students are actual victims and which are willing participants, and it would be unfair to terminate F-1 status for everyone who was ever involved with these consultancy firms. Therefore, you should periodically check with your DSO to make sure that your SEVIS is still active. As long as your SEVIS is active, you are still in status and can remain in the United States until OPT / STEM OPT ends.
If you are on H-1b status - Your H-1b visa is now revoked. Your H-1b status should still be active. H-1b status is controlled by USCIS (Form I-94), an agency under Department of Homeland Security. Visa issuance (and revocation) is controlled by the US Consulate / Embassy, which is under Department of State. They are different federal agencies that have different rules and regulations. Therefore, visa revocation does not immediately lead to H-1b status termination. We do not believe that USCIS will initiate status termination for those who are already on H-1b status because this status was granted through the approval of an H-1b petition filed by the employer. Employee's past status problem will not cause the petition to be revoked. However, when the employee applies for H-1b extension, USCIS may raise past employment problem and ask the employee to provide explanation before approving the H-1b extension in the future.
Should I worry about being arrested and deported after receiving the visa revocation email?
No. Visa revocation does not mean your nonimmigrant status being revoked. Only foreign nationals who are without status in the United States are subject to arrest and deportation. If your status is terminated, you will be given some time to depart from the United States or apply for reinstatement (F-1) before being sent to deportation proceeding. After status termination, the normal procedure is for ICE to send you a "Notice to Appear" (NTA) that tells you why you are being sent to removal (deportation) proceeding, and a court date will be scheduled for you to appear in front of an immigration judge who will preside over your removal case. ICE or CBP cannot "issue deportation order" to you when you are in the United States because they have no legal power to do so. They can, however, summon you to immigration court by sending you a Notice to Appear. Therefore, even in the unlikely event that ICE terminates the student's status, immediate deportation is not possible because procedures will have to be observed to send the student to deportation proceeding following status termination.
Immigration Custom Enforcement (ICE) is the agency that is in charge of arresting foreign nationals in the United States without legal status. ICE agents do not typically arrest someone unless they have arrest or conviction records or are threats to national security. Detaining someone is actually a costly operation for the government, and detention facilities are almost full throughout the country. Therefore, it is highly unlikely that ICE will detain foreign nationals on F and H status without criminal record after their status is terminated. So far, none of the students involved with the consultancy firm(s) have been criminal charged, and we do not expect criminal charges to be filed against the students because many of them were victims of the consultancy's predatory hiring practice and not willing participants of immigration fraud.
What should I do proactively if I have received the visa revocation email from the Department of State?
Foreign nationals who received the revocation email should follow the steps below.
- Perform a thorough search in the email, using the name of the consultancy firm and pull all communication (email, attachment, job offer, screen shot of text messages, training materials, email log in credential, etc.) that occurred between you and the consultancy firm and put them in a safe place.
- Start drafting a statement that details the history of how you were approached by the consultancy firm, how long you stayed with them, what kind of training did you actually receive from the consultancy, how many times you tried to reach out to them to raise an issue or complaint about OPT noncompliance or lack of employment opportunities. Make sure the information in your statement can be reasonably supported by the records in your possession.
- Stay in constant contact with your DSO if your on F-1 OPT status to confirm that your SEVIS account is still active.
What are my chances of getting another visa approved from the US Consulate if I received the visa revocation email?
Whether you receive another visa depends largely on how well you interview next time and the circumstances surrounding your involvement with the consultancy firm in question. How well you interview depends on how prepared you are to answer questions about your involvement with the consultancy firm in the short 5 to 10 minute face to face discussion with the visa officer at the window. The visa officer probably won't be very interested in your documents because they want to hear from you directly. Your eye contact, body language and sincerity will determine whether you are credible and should be granted another visa. This determination is largely a judgement call, made by the officer alone. Therefore, it is important to prepare your statement so that you are able to comfortably describe the circumstances of your involvement with the consultancy.
Ultimately, if your statement and evidence suggest that you were a victim of the consultancy's predatory hiring practice, and that you left the consultancy firm as soon as you realized that the arrangement was in violation of OPT rules, you have a much better chance of getting another visa approved from the US Consulate. You only have to convince that one visa officer to reissue you a new visa. Needless to say, the longer you stayed with the consultancy firm and not raise any complaint about not having training or job placement, the less it would seem that you were a victim. If you stayed with the consultancy for several months and did not ask any questions, your claim of being innocent of the situation would be less credible, and your next visa application would be less likely to be approved. Therefore, it is important to advocate for yourself if you believe that you were not a willing participate of the fraudulent OPT employment scheme.
What should I do in the unlikely event that ICE or USCIS terminates my status after I received the visa revocation email?
If you are on F-1 OPT status - If ICE terminates your SEVIS account, you can apply for reinstatement on form I-539 if you have a new I-20 from another school in the United States. You can also depart the United States within 30 days and reapply for another F-1 visa abroad in the US Consulate. Please note that if you decide to reapply for another F-1 visa, you should refer to the section above about what to prepare (statement, records) to back up your side of the story that you were not a willing participant in the fraudulent OPT employment scheme.
If you are on H-1b status - Although highly unlikely, USCIS may decide to revoke your H-1b status because of your involvement in the fraudulent OPT employment scheme. This revocation, however, should leave the approved H-1b petition unaffected because the H-1b petition is filed by the employer and has nothing to do with the employee's prior immigration violation in the United States. Therefore, if USCIS revokes the H-1b employee's status, the employee will be immediately out of status and has to reapply for an H-1b visa in the US Consulate. If the employee already has an H-1b visa, they should consider that visa cancelled and initiate H-1b visa re-application process. When employees appears for H-1b visa interview, they should prepare to answer questions about prior involvement with questionable consultancy firm.
Can I ask the DSO to remove the consultancy firm as a prior employer in the SEVIS record?
No. Such update would not be possible and would not be helpful in this situation to correct a past violation of OPT employment regulation.
When will I be asked to present my side of the story to show that I was not a willing participant of fraudulent OPT employment?
You would be asked to present your side of the story in three scenarios. First, you will be called upon by the visa officer to answer questions about prior involvement with consultancy firm when you appear for your next visa interview. This is going to be a short interview and most of the answers you will be given will be oral answers to the visa officer's questions. As mentioned before, the visa officer probably will not be as interested in the documentary evidence in your possession because they have a very short amount of time to make the determination, and they want to hear from you directly. If they are satisfied with your answers then a new visa will be granted to you.
Second, you may be asked to present your side of the story when you apply for any change of status from your current status. For example, if you are on F-1 status and you apply for change of status to H-1b, USCIS may send you an RFE to demonstrate that you have maintained status, and such a request may require you to fully explain the arrangement you had with prior consultancy firm before the change of status can be approved. Similarly, if you apply for an H-1b extension, this issue may come up as well in an RFE for maintenance of status, but this type of RFE is unlikely because USCIS often only trace maintenance of status from the date of applicant's last entry.
Third, you may be asked to present your side of the story if ICE terminates your status and you decide to apply for reinstatement of F-1 status. A reinstatement application will require you to explain the circumstances under which you fell out of status. You will have to convince USCIS officer who reviews your reinstatement application that your status were terminated for reasons outside of your control. For example, your F-1 status was terminated because ICE wrongly terminated your status for unsubstantiated belief that you were willing participant in the fraudulent OPT employment. This would require you to submit all the evidence in your possession to show that you terminated your relationship with the consultancy firm as soon as you realize that the arrangement violated OPT regulations.
Will receiving the visa revocation email cause my H-1b petition to be denied by USCIS?
No. The H-1b petition is filed by the employer and the approval of which does not depend on the beneficiary's maintenance of status. The H-1b petition can still be approved in spite of the email but the beneficiary may be required to consular processing and face questions from the visa officer.
Will I be charged criminally for accepting the offer given by the consultancy firm.
Probably not. In order to charge someone criminally, there has to be strong probable cause and evidence of intentional wrongdoing. In a charge of fraud, intent is extremely important and the government must have strong evidence of intent in order to criminally charge an individual with fraud. In this scenario, many participants were innocent victims who had no intention of committing fraud as evidenced by their quick exit from the consultancy as soon as they realized that the arrangement may violate the OPT regulations. Therefore, it would not be smart for the government to charge all participants with criminal fraud because it would be difficult to prove everyone's intention and culpability. However, immigration fraud requires less burden of proof, and it remains to be seen how DOS, CBP, USCIS and ICE will decide to deal with this widespread violation of OPT employment regulations.
What are my chances of being granted another visa to come back to the United States?
Your chance of being granted another visa to return to the United States depends on your individualized situation and the amount of evidence you have on (1) the training you received while under consultancy's employment, (2) whether you raised issues with the consultancy regarding their in action and lack of work, (3) how long you stayed with the consultancy although you were unlawfully benched by the consultancy, (4) whether you have other immigration violations in addition your involvement with the consultancy.
Would my H-1b employer be notified of this incident?
Probably not. This is a personal issue and the consulate should only contact the person holding the visa and the employer will not be notified of this event.
If my status is terminated by ICE or USCIS, how soon will I be required to depart from the United States if I do not apply for reinstatement or extension
You should leave the United States within 30 days if you do not plan to file reinstatement or extension application to attempt to rectify your nonimmigrant status in the United States.
Can I get help on this from an immigration lawyer?
Yes. You should contact an immigration attorney to go over your options moving forward if you have received an email from Department of State or if you are anticipating the email from Department of State. We offer consultation on this very issue. If you want to set up an appointment to discuss your questions with me, please use the link below to schedule an appointment with me. I look forward to speaking with you about your immigration questions. If you have just a few quick questions, I recommend scheduling a 15 minute consultation. If you have many questions or would like me to analyze several options, then a 30 minute consultation will be more suitable. Appointments are first come first served, so please use the link below to schedule the most convenient time to have our immigration consultation. Please use the link below to schedule a consultation.
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