Introduction
On November 18, 2018, a group of students implicated in the “pay to stay” scheme involving the University of Northern New Jersey, a fake university established by the Department of Homeland Security (DHS), filed a class action lawsuit challenging the federal government’s determination that they committed visa fraud by enrolling in the fake university. In this article, we will examine the background of the case and the new class action lawsuit.
DHS Announces Arrests in “Pay to Stay” Scheme
On April 5, 2016, the Department of Justice (DOJ) announced criminal charges against 21 defendants in a “pay to stay” scheme [see news release]. The charges alleged that the defendants “conspired with more than 1,000 foreign nationals to fraudulently maintain student visas and obtain foreign worker visas” by enrolling the foreign nationals at the “University of Northern New Jersey” (UNNJ), a purported for-profit college that was in fact established by the Homeland Security Investigations (HIS). The DOJ explains that UNNJ “not staffed with instructors or educators, had no curriculum, and conducted no actual classes or education activities.” The DOJ explained that it “operated solely as a storefront location with small offices staffed by federal agents posing as school administrators.”
The DOJ stated that the defendants enabled approximately 1,076 individuals — who had previously entered the United States on F1 nonimmigrant visas to attend other Student and Exchange Visitor Program (SEVP) schools and who were “willing participants” in the scheme — to “enroll” in UNNJ in order to fraudulently maintain F1 status. Furthermore, the defendants used the fake university to obtain employment authorization and work visas “for hundreds of their clients.”
Although criminal charges were only brought against recruiters, brokers, and employers who had participated in the pay-to-stay scheme, the F1 students who were deemed to be “willing participants” in the scheme faced adverse immigration consequences. The DOJ explained that HIS Newark was coordinating with the Immigration and Customs Enforcement (ICE) Counterterrorism and Criminal Exploitation Unity (CTCEU) and the SEVP “to terminate the nonimmigrant student status for the foreign nationals associated with UNNJ, and if applicable, administratively arrest and place them into removal proceedings.”
Students File Class Action Lawsuit Against the DHS
On November 18, 2018, a group of the students filed a class action lawsuit in the U.S. District Court for the Eastern District of New York challenging the government’s determination that they had committed visa fraud in Fang et al. v. Saldaña et al., 11/18/16 [PDF version].1 The students argued that they had enrolled in the UNNJ thinking that it was a bona fide university, and that they had not realized that it was a front established by the ICE.
The class action suit alleges that it was improper of the government to make a blanket determination that all of the foreign students who enrolled in UNNJ had knowingly participated in visa fraud, and that the government had violated their due process rights by failing to provide individualized hearings. The suit also alleges that the ICE’s blanket fraud determination violated the Administrative Procedure Act (APA) and was “arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with the law.” The suit claims that the termination of the 1,076 students’ F1 status based on a blanket determination of fraud violated the APA and was arbitrary and capricious.
The plaintiffs have asked the U.S. District Court for the Eastern District of New York to certify all of the individuals charged with visa fraud for having enrolled in UNNJ as a class and to grant relief to the class as a whole. The plaintiffs asked the Court to find that the ICE’s blanket determination that they had all participated in visa fraud violated their Fifth Amendment due process rights as well as the APA. The plaintiffs asked for an injunction requiring the DHS to provide individualized hearings for each plaintiff to determine in each case whether visa fraud was committed. The plaintiffs also asked for an injunction barring the DHS from relying on enrollment at UNNJ to deny any immigration-related benefits or posting that the plaintiffs had committed visa fraud prior to providing individualized proceedings. Finally, the plaintiffs requested that the Court find that their F1 status was unlawfully terminated and that they be given an opportunity to preserve valid status by either transferring to another school, applying for a change of status, or being afforded a reasonable opportunity to have F1 status reinstated.
Conclusion
The proceedings in the UNNJ case will bear watching as it is possible that up to 1,076 individual F1 students implicated in the scheme may be affected by the result. Even if the plaintiffs prevail, it is entirely possible that some, if not most or all, will be found to have committed visa fraud in the individualized proceedings requested.
Well-intentioned F1 students are well advised to do their due diligence in ensuring that they are seeking to enroll in a bona fide school, and certainly not a front established by the DHS to root out visa fraud. If an F1 student or any nonimmigrant is ever charged with visa fraud, he or she should — as the plaintiffs did in the instant case — consult with an experienced immigration attorney immediately.
