ICE Too Nice?

ICE Is Too Nice to the Dregs of the Dregs of F-1 Issuing Schools

By David North, January 10, 2014

If an immigration compliance matter is such an obvious problem that even our lackadaisical Congress does something about it, then it must be pretty serious. But you would not know it from the way a DHS agency acted the other day.

There is such a problem, and it deals with unaccredited schools of English and their ability to cause the issuance of F-1 visas for international students. The Government Accountability Office has determined that such schools are particularly likely to be used as pathways for illegal aliens.

More than three years ago, Congress passed, and the president signed, the Accreditation of English Language Training Programs Act. It gave unaccredited ESL schools three full years to secure a clearance from any of the academic accreditation organizations recognized by the U.S. Department of Education. If the ESL schools could not qualify in this generous time period by December 14, 2013 — a date that passed recently — they could no longer issue the form allowing their students (and customers) to apply for F-1 visas.

Those unfamiliar with such matters might ask two questions:

1. Do you mean that the Department of Homeland Security was recognizing unaccredited schools for visa-issuance purposes?

2. More fundamentally, why admit aliens to study English in this country when one can study English just about anywhere in the world? Further, as a matter of fact, the language evolved somewhere else, long before the United States came into existence.

The answer, of course, is that the private, for-profit entities that run most of these schools convinced a sloppy Congress in the past that both such practices were good for the tiny enclave of the U.S. economy where they prospered. It apparently did not matter to decision-makers that such schools often create more illegal aliens than gifted English speakers.

After a number of years, Congress, in 2010, decided to limit such activity. When it did so, it singled out the language schools for special treatment. Unaccredited schools in other fields (other than flight training) can continue to admit foreign students.

So, now that the deadline has passed, what has Homeland Security's Student and Exchange Visitor Program (SEVP), a segment of Immigration and Customs Enforcement (ICE), done about it?

It essentially decided to ignore the 2010 law and has granted these primarily for-profit ESL schools more time (apparently unlimited) to either get themselves accredited or, after all appeals have been exhausted, become unaccredited. Until then they can apparently keep issuing the I-20, the form that allows the holder to apply for an F-1 student visa. ESL schools that have actually been denied accreditation, if any, can no longer issue the I-20.

The verbiage used to describe the SEVP posture is that the agency, "does not intend to take any administrative compliance enforcement action" against those without accreditation, as long as they follow the rules of the accreditation entity and the school has not been denied accreditation.

As you think about this permissive decision, bear in mind that there are no hearts-and-flowers stories available in this arena; no "broken" families, no illegal aliens deported to their homelands, no valedictorians denied "the American dream". All the law means (were it to be obeyed) is that some obviously not very impressive, largely for-profit institutions would no longer be able to accept (via form I-20) some paying customers, customers who are probably more interested in coming to the United States than in studying the language (which they could do much less expensively at home.)

If the administration can't be trusted to handle such a open-and-shut compliance issue, how can it be trusted to enforce any part of the immigration law?

One should bear in mind that there are three tiers of SEVP-certified English-language schools in the U.S. There are:

1. Those that were accredited prior to the 2010 act;

2. Those that were accredited after the act and before December 14, 2013; and,

3. Those that had, despite three years warning, remained unaccredited on that date.

It is only the last grouping, surely neither numerous and nor distinguished, that SEVP has singled out for its perhaps illegal discretionary action.

Perhaps some entity in either class 1 or class 2 above could sue SEVP for giving those in class 3 financial benefits that are clearly against the law and contrary to the economic interests of schools in the other two classes. I volunteer to be among the expert witnesses for the plaintiff!

The reporting here on the latest SEVP action or non-action regarding the unaccredited ESL schools is based on a news item on p. 2396 of the December 16, 2013, issue of Interpreter Releases, the immigration bar's usually reliable trade paper (not available online). That article states: "School officials who have questions about the Accreditation Act should visit SEVP's Frequently Asked Question Web page." It gives this citation in a footnote.

There is nothing I could find on that website or among SEVP and ICE news releases that related to the Interpreter Releases news item. The latter strikes me as perfectly in tune with what SEVP and the administration does in regard to the enforcement of the immigration law, so I believe the reporting, but Interpreter Releases apparently scooped the SEVP website with this item.

Of course, the SEVP website and the agency itself are not exactly au courant; a lead item on its current (January 9, 2014) "What's New" page dated November 27, 2013, says that the agency

Ben Ferro

benferro@insideins.com