May 6, 2024

On college campuses across the country, including my alma mater Columbia, where this week’s commencement ceremony has been cancelled due to conflict between protesters and university administration, a key concern for foreign students in F-1 status and visiting scholars in J-1 status is, “How does this affect me? How can I protect myself?”

While freedom of expression under the First Amendment is a right that applies to everyone, student visa status is a discretionary privilege, not a right. This means that foreign students who take part in campus protests alongside their US citizen and permanent resident classmates face added risks, particularly when interacting with law enforcement. You always have a right to remain silent, but not to make misrepresentations: don’t give a fake name or false documents. Do ask to remain silent until your attorney is present. Don’t carry original status documents with you such as your I-20 and I-94; carry photocopies. If you are arrested, know that you will have to disclose that fact on all future visa applications and other immigration applications, and will need to retain your disposition records. The National Lawyer’s Guild has prepared a Know Your Rights booklet for student protesters: read it before heading out.

A student’s SEVIS record can be terminated at the discretion of the school if the foreign student drops below a full courseload, blocks access to campus buildings, assaults or threatens another student or a staff or faculty member, or engages in other conduct that violates the school’s rules or results in arrest, so there aren’t really any blanket protections for foreign students who engage in campus protests. Protest is a choice made by the individual student, and it must be made with the knowledge that it may be a choice that could permanently imperil the student’s ability to complete the degree for which they are enrolled.

Designated School Officials (“DSOs”)  – the authorized signatories on Form I-20 or Form DS-2019 who work in a university’s Office of Foreign Students & Scholars – have a fair amount of discretion in terms of when they may terminate a suspended student’s SEVIS record, but they must do so in the event of expulsion. Each university has its own systems, procedures and rules governing suspension, and each DSO exercises their discretion differently, so it is impossible to set expectations that will apply equally at every school.

Once a student’s SEVIS record is terminated by the school, that makes the student “out of status.”  If the student’s visa status, as reflected in the SEVIS database (not the physical visa stamp in the passport, which is only an entry document) is then terminated or revoked by a formal decision of ICE or USCIS, both agencies under the Department of Homeland Security, then the student also begins to accrue “unlawful presence.” 

Once the government issues a formal decision terminating F-1 or J-1 status, then the student or scholar becomes “unlawfully present.” This means the student is not only ineligible for any change of status or extension of stay in the U.S., and ineligible for reinstatement to student status, but also, even if the student is issued a new Form I-20 or Form DS-2019 to re-enroll at the same school or at another one, and can travel abroad to reapply for a new visa: 1) the student’s existing visa stamp  in their passport becomes void by operation of law, as does any other U.S. visa, and 2) the student is ineligible for third-country visa processing, and can only apply for a new visa at a U.S. Embassy or consulate in their home country.   If the student leaves the U.S. voluntarily within 15 days, following any formal DHS decision terminating F-1 or J-1 status and making the student unlawfully present, it does NOT count as a “removal” or deportation. However, certain consequences  – such as automatic voiding of any existing US visas in the passport, and ineligibility for 3rd-country visa processing – kick in on the first day of unlawful presence.