Over the past two weeks, Immigration and Customs Enforcement (“ICE”) has arrested more than 100 students and 8 recruiters connected with the University of Farmington, located in the suburbs of Detroit, Michigan. If you have never heard of the University of Farmington before reading this post, or any of the recent news surrounding it, that should come as no surprise; it will not appear in this year’s college rankings, or threaten to upset a top seed in March Madness.
That is because the University of Farmington is a fake university the Department of Homeland Security (“DHS”) established to ensnare not only foreign nationals seeking employment authorization while studying in the United States, but also the recruiters who sold them this program.While the University was wholly fabricated by DHS, that more than 100 foreign nationals are in government custody pending immigration court proceedings and 8 recruiters have been charged criminally, sparking outcries from lawmakers in the United States and India, is decidedly real, as are the mounting issues with our immigration system that this case exposes.
Work Authorization for F-1 Students – Curricular Practical Training and Optional Practical Training
The students arrested were all enrolled at University of Farmington and participating in Curricular Practical Training (“CPT”) – a form of work authorization granted to foreign national students whose employment outside the classroom is “an integral part of an established curriculum.”A university’s International Student Office (“ISO”) enters into cooperative agreements to ensure this work is directly connected to and in furtherance of the program’s academic objectives, with the ISOs granting authorization to work under CPT. Therefore, and unlike Optional Practical Training (“OPT”) that requires application to and approval from U.S. Citizenship and Immigration Services (“USCIS”), the CPT regime is largely university-driven and capable of granting working authorization on a much faster timeline for foreign national students. With the struggle for students to transition from F-1 to H-1B (as well as other visa classifications), CPT is a popular, though heavily scrutinized, route for international students who want to maintain lawful status while also gaining professional experience – especially after they have struck out in the H-1B Cap Lottery.
Foreign students also generally have access to 1 year of post-completion work authorization per level of education, called Optional Practical Training (“OPT”). To qualify for OPT, a student must apply first through their ISO, and then to USCIS for a work permit. Students are only permitted to work in positions that are related to their field of study, and may be unemployed for up-to-90-days during their initial grant of OPT. Graduates with degrees in Science, Technology, Engineering, and Mathematics (“STEM”) also have access to an additional 2-year extension of OPT, but in so doing must complete and maintain a detailed training plan to confirm how the position will develop skills and knowledge gained in earning the degree. An additional 60 days of unemployment, meaning F-1 students with a STEM OPT Extension can be out of work for 150 days of the 3 years of employment authorization.
Maintenance of F-1 Status During CPT
Importantly, in addition to CPT employment being directly related to the degree program, foreign nationals employed while studying must otherwise comply with all other F-1 requirements to maintain student status. For example, they must have a full schedule of classes that they attend in-person, and which earn credits towards completing a degree. As such, foreign nationals may not enroll in a degree program simply to gain CPT authorization; they must be students, first and foremost, who also work as part of earning their degree.
Maintenance of status – both in the CPT employment being “integral” to the degree and continuing to attend class, etc. – comes up in the context of H-1B Petitions seeking a change of status from F-1 CPT to H-1B. In such cases, USCIS seeks extensive documentation to ensure the student employee is not solely using F-1 CPT to stay and work in the United States. Such proof includes everything from attendance records, transcripts, and syllabi, to book receipts, evidence of transportation/lodgings when attending school, and the cooperative agreements governing the university-employer partnership. And with the DHS’ new Policy Memorandum heightening the consequences of students’ failure to comply with their F-1 status, abiding by all applicable regulations has become more important than ever.
University of Farmington Students – Pay to Stay, or DHS Victims?
As reported by the Detroit Free Press, DHS went to great lengths to make the University of Farmington appear to be a real institution of higher education. Federal agents posed as university administrators – including “Ali Milani,” who had a LinkedIn page as the University’s President – advertising its national accreditation, STEM program, and ability to accept foreign national students. Federal officials used fake names to register the University with the State of Michigan, and even created a backstory to connect the school with Detroit’s history post-World-War-II as an epicenter for technical innovation.
All of these efforts were to present a facade for a University that was only that in name; the University of Farmington had no real faculty, no curriculum, and never intended to grant a degree to its enrollees. Instead, it was created for the sole purpose of allowing foreign national students to secure F-1 CPT employment authorization, a “pay to stay” scheme sold by recruiters to more than 600 foreign national students. And according to the unsealed indictments, the students were in on the sham, knowing full-well that the university was a fictitious means by which to secure employment authorization. Now, more than 100 students have been detained by ICE, many of whom remain in custody pending immigration court hearings that could render them permanently barred from the United States for having committed immigration fraud.
According to attorneys engaged in the case, however, many of the students lacked the fraudulent intent described in the indictment, and instead believed they were enrolling in a bona fide university. Indeed, many real universities attract foreign national students due to the ease with which they can secure lawful employment authorization pursuant to CPT, while also genuinely pursuing a bachelor’s level or advanced degree. Considering the myriad ways the University of Farmington presented itself as a legitimate institution, it would not be surprising if these appearances fooled many students into believing the university offered a smooth and legal route to academic-related work authorization. According to one attorney, when faced with questions regarding the unavailability of class offering, University of Farmington (i.e. U.S. government) officials assured students that classes ensuring their compliance with immigration laws and regulations would come soon. Select students transferred upon learning the school would not offer classes as advertised, whereas others – some of whom took out loans to pay for admission to the university – could not afford to transfer and pay additional tuition fees to a new school.
Additional issues have also come to the fore – namely, the treatment of the detained students from India while they await their hearings. In fact, local members of Congress have written ICE to convey their concern with how these students have been treated, with the Indian government’s Ministry of External Affairs also lodged its concerns with the U.S. Embassy in New Delhi over its citizens’ treatment. Amongst these allegations are that students do not receive vegetarian meals that comply with their religious beliefs, a common complaint amongst immigrant detainees.
Takeaways – With Fewer Opportunities and Greater Scrutiny, Students Must be Vigilant in Maintaining Status
Whether students innocently fell prey to the government’s ploy or knowingly went along with a pay to stay scheme, the University of Farmington story illustrates the challenges facing foreign nationals seeking to study and/or work in the United States. With H-1B Cap visas subject to the yearly lottery due to heavy oversubscription and more frequent requests for evidence and denials for H-1B and other Petitions, foreign nationals have fewer and fewer opportunities to transition from F-1 student to nonimmigrant worker. In this environment, students have sought advanced degrees that grant them employment authorization. Though many students abide by the numerous requirements for maintaining F-1 status while obtaining professional experience under CPT, others have used the program as an end-around to work in the United States while waiting for another avenue to come available. Enforcement has been ramped-up across the board, with USCIS demanding to review evidence of maintenance of status, with the consequences of failing to do so quite severe.
Green and Spiegel regularly interacts with students, employers, and universities presently in F-1 CPT, and especially in the F-1 to H-1B context. If you have any questions regarding your F-1 CPT employment, or you options beyond holding F-1 status, please do not hesitate to contact our office