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President and Fellows of Harvard College v. United States Department of Homeland Security (1:25-cv-11472)
District Court, D. Massachusetts
Last Updated: May 23, 2025, 6:27 p.m.
Assigned To: Allison Dale Burroughs
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1. May 23, 2025. COMPLAINT against All Defendants Filing fee: $ 405, receipt number AMADC-11026907 (Fee Status: Filing Fee paid), filed by President and Fellows of Harvard College. (Attachments: # 1 Exhibit 1. DHS Appeals Website, # 2 Exhibit 2. ICE Appeals Website, # 3 Exhibit 3. DHS Loss of SEVP Certification Website, # 4 Exhibit 4. February 3, 2025 DOJ Press Release, # 5 Exhibit 5. February 26, 2025 Jewish News Syndicate Article, # 6 Exhibit 6. February 28, 2025 DOJ Press Release, # 7 Exhibit 7. March 31, 2025 Federal Task Force Letter to Harvard, # 8 Exhibit 8. April 3, 2025 Federal Task Force Letter to Harvard, # 9 Exhibit 9. April 11, 2025 Federal Task Force Demand Letter to Harvard, # 10 Exhibit 10. Garber Letter, Promise of American Education, # 11 Exhibit 11. April 14, 2025 Letter from Harvard, # 12 Exhibit 12. April 14, 2025 Funding Freeze Order, # 13 Exhibit 13. April 15, 2025 Truth Social Post, # 14 Exhibit 14. April 15, 2025 New York Times Article, # 15 Exhibit 15. April 16, 2025 President Trump Truth Social Post, # 16 Exhibit 16. April 16, 2025 DHS Records Request, # 17 Exhibit 17. April 16, 2025 DHS Press Release re: Records Request, # 18 Exhibit 18. April 24, 2025 President Trump Truth Social Post, # 19 Exhibit 19. April 30, 2025 Letter from Harvard, # 20 Exhibit 20. May 2, 2025 President Trump Truth Social Post, # 21 Exhibit 21. May 5, 2025 Secretary McMahon Letter to Harvard, # 22 Exhibit 22. May 7, 2025 DHS E-Mail to Harvard, # 23 Exhibit 23. May 13 & 14, 2025 DHS E-Mails with Harvard, # 24 Exhibit 24. May 14, 2025 Harvard Production Letter, # 25 Exhibit 25. May 22, 2025 DHS Decertification Letter, # 26 Exhibit 26. May 22, 2025 Noem Tweet, # 27 Exhibit 27. May 22, 2025 DHS Press Release, # 28 Exhibit 28. March 28, 2025 Garber Message, Our Resolve, # 29 Civil Cover Sheet, # 30 Category Form, # 31 Supplement Certification of Basis for Designating as Related Case)(Lehotsky, Steven) (Entered: 05/23/2025)
1. Complaint
Attachment 1. Exhibit 1. DHS Appeals Website
Attachment 2. Exhibit 2. ICE Appeals Website
Attachment 3. Exhibit 3. DHS Loss of SEVP Certification Website
Attachment 4. Exhibit 4. February 3, 2025 DOJ Press Release
Attachment 5. Exhibit 5. February 26, 2025 Jewish News Syndicate Article
Attachment 6. Exhibit 6. February 28, 2025 DOJ Press Release
Attachment 7. Exhibit 7. March 31, 2025 Federal Task Force Letter to Harvard
Attachment 8. Exhibit 8. April 3, 2025 Federal Task Force Letter to Harvard
Attachment 9. Exhibit 9. April 11, 2025 Federal Task Force Demand Letter to Harvard
Attachment 10, Exhibit 10. Garber Letter, Promise of American Education
Attachment 11. Exhibit 11. April 14, 2025 Letter from Harvard
Attachment 12. Exhibit 12. April 14, 2025 Funding Freeze Order
Attachment 13. Exhibit 13. April 15, 2025 Truth Social Post
Attachment 14. Exhibit 14. April 15, 2025 New York Times Article
Attachment 15. Exhibit 15. April 16, 2025 President Trump Truth Social Post
Attachment 16. Exhibit 16. April 16, 2025 DHS Records Request
Attachment 17. Exhibit 17. April 16, 2025 DHS Press Release re: Records Request
Attachment 18. Exhibit 18. April 24, 2025 President Trump Truth Social Post
Attachment 19. Exhibit 19. April 30, 2025 Letter from Harvard
Attachment 20. Exhibit 20. May 2, 2025 President Trump Truth Social Post
Attachment 21. Exhibit 21. May 5, 2025 Secretary McMahon Letter to Harvard
Attachment 22. Exhibit 22. May 7, 2025 DHS E-Mail to Harvard
Attachment 23. Exhibit 23. May 13 & 14, 2025 DHS E-Mails with Harvard
Attachment 24. Exhibit 24. May 14, 2025 Harvard Production Letter
Attachment 25. Exhibit 25. May 22, 2025 DHS Decertification Letter
Attachment 26. Exhibit 26. May 22, 2025 Noem Tweet
Attachment 27. Exhibit 27. May 22, 2025 DHS Press Release
Attachment 28. Exhibit 28. March 28, 2025 Garber Message, Our Resolve
Attachment 29. Civil Cover Sheet
Attachment 30. Category Form
Attachment 31. Supplement Certification of Basis for Designating as Related Case
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
PRESIDENT AND FELLOWS OF HARVARD COLLEGE,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY;
KRISTI NOEM, in her official capacity as Secretary of the United States Department of Homeland Security;
UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT;
TODD LYONS, in his official capacity as Acting Director of United States Immigration and Customs Enforcement;
STUDENT AND EXCHANGE VISITOR PROGRAM;
JOHN DOE, in their official capacity as Director of the Student and Exchange Visitor Program;
JAMES HICKS, in his official capacity as Deputy Assistant Director of the Student and Exchange Visitor Program;
UNITED STATES DEPARTMENT OF JUSTICE;
PAMELA BONDI, in her official capacity as Attorney General of the United States;
UNITED STATES DEPARTMENT OF STATE;
MARCO RUBIO, in his official capacity as Secretary of the United States Department of State,
Defendants.
Case No. 1:25-cv-11472
Filed 05/23/25
1. For more than 70 years, Harvard University (“Harvard” or the “University”) has been certified by the federal government to enroll international students under the F-1 visa program, and it has long been designated as an exchange program sponsor to host J-1 nonimmigrants. Harvard has, over this time, developed programs and degrees tailored to its international students, invested millions to recruit the most talented such students, and integrated its international students into all aspects of the Harvard community. Yesterday, the government abruptly revoked that certification without process or cause, to immediate and devastating effect for Harvard and more than 7,000 visa holders.
2. This revocation is a blatant violation of the First Amendment, the Due Process Clause, and the Administrative Procedure Act. It is the latest act by the government in clear retaliation for Harvard exercising its First Amendment rights to reject the government’s demands to control Harvard’s governance, curriculum, and the “ideology” of its faculty and students. The government’s actions are unlawful for other equally clear and pernicious reasons. They disregard the government’s own regulations—under which Harvard should remain certified to host F-1 and J-1 visa holders. They depart from decades of settled practice and come without rational explanation. And they were carried out abruptly without any of the robust procedures the government has established to prevent just this type of upheaval to thousands of students’ lives.
3. With the stroke of a pen, the government has sought to erase a quarter of Harvard’s student body, international students who contribute significantly to the University and its mission. Harvard’s certification is essential for each of Harvard’s thousands of international students to lawfully remain in this country while they complete coursework, obtain degrees, and continue critical research. Effective immediately, most of Harvard’s thousands of enrolled F-1 and J-1 visa students (and their more than 300 dependents) will have little choice but to secure transfer to another school or risk being rendered without lawful status in the United States. Effective immediately, Harvard can no longer sponsor F-1 and J-1 visa holders for its upcoming summer and fall terms, despite having admitted thousands. Effective immediately, countless academic programs, research laboratories, clinics, and courses supported by Harvard’s international students have been thrown into disarray. The government’s actions come just days before graduation. Without its international students, Harvard is not Harvard.
4. Harvard therefore brings this action under the United States Constitution, the Administrative Procedure Act (APA), and the equitable authority of this Court to vacate, set aside, and enjoin the government’s unlawful acts.
INTRODUCTION
5. For more than 70 years, Harvard has continuously hosted international students with so-called F-1 visas on its campus in coordination with the government under a program currently called the Student and Exchange Visitor Program (SEVP) and overseen by the U.S. Department of Homeland Security (DHS). Harvard has also long been designated as an exchange program sponsor to host J-1 nonimmigrants. These visa programs, which allow international students to enter the United States on nonimmigrant visas to enroll at Harvard and thousands of other schools,1 have boosted America’s academic, scientific, and economic success and its global standing.
6. Tens of thousands of international students have studied at Harvard under the F-1 visa program. Additional international students and scholars have come to Harvard under the J-1 visa program. These students have contributed to the University’s research advancements in immeasurable ways. They do so by (among other things) publishing pioneering scholarship, supporting scientific research, inventing groundbreaking technologies, and starting thriving businesses here in America.
7. Building the international program that sponsors these students did not happen overnight. It has been a painstaking, decades-long project to cultivate the programs, opportunities, personnel, and reputation that allow Harvard to attract the most qualified international students, vet those students in partnership with the government to ensure they can obtain and maintain the necessary visas to complete their course of study, and integrate them into the Harvard community. Harvard’s robust and thriving visa programs have inured to the benefit of Harvard’s entire population and the United States.
8. Since the inception of the F-1 visa program more than 70 years ago, Harvard and the government have worked cooperatively to advance these goals. Harvard has been continuously certified to host F-1 visa holders since 1954. Under the modern program established in 2003, certified schools must comply with specified recordkeeping, retention, and reporting requirements and renew their F-1 certification every two years. And, since then, Harvard has complied with all applicable reporting requirements and renewed its certification without incident. For more than 70 years, the government has never threatened Harvard’s certification.
9. All of that changed on April 16, 2025, when the Secretary of Homeland Security, Kristi Noem, sent Harvard’s International Office (HIO) a letter (the “Records Request”) criticizing Harvard for “fail[ing] to condemn antisemitism.” The Records Request demanded that HIO produce wide-ranging information for “each student visa holder” across Harvard’s 13 schools within ten business days and further stated that failure to do so “within the timeframe provided”— that is, by April 30, 2025—would be “treated as a voluntary withdrawal” from the F-1 program and “not … subject to appeal.”
10. Despite the unprecedented nature of this demand, HIO immediately began collecting responsive records from the information it maintains or keeps “accessible,” 8 C.F.R. § 214.3(g)(1), and, on April 30, Harvard produced that information to DHS. On May 14, Harvard also produced additional information in response to a follow-up request from DHS. Yet, on May 22, 2025, DHS deemed Harvard’s responses “insufficient”—without explaining why or citing any regulation with which Harvard failed to comply—and revoked Harvard’s SEVP certification “effective immediately.”
11. The government’s termination of Harvard’s SEVP certification is the culmination of its unprecedented and retaliatory attack on academic freedom at Harvard:
a. In recent weeks and months, through a multi-agency Task Force to Combat Anti-Semitism (“Federal Task Force”), the government has conditioned Harvard’s continued receipt of numerous federal benefits, including billions of dollars of federal funding, on accepting sweeping changes to Harvard’s governance, admissions, hiring, and academic programs.
b. The government enumerated these demands in extensive detail in an April 11, 2025, letter to Harvard’s President. The government demanded (among other things) that Harvard hire a third-party to “audit” the viewpoints of its students, faculty, and staff; depending on the results of the audit, hire and admit a “critical mass” of people to achieve the government’s preferred level of “viewpoint diversity” in “each department, field, or teaching unit”; refuse admission to international students “hostile to [] American values”; “exclusively” “empower” faculty supportive of the government’s action and “reduce[] the power” of those opposed; allow the government to review its faculty hires; expel or suspend specific sets of students; disband disfavored student clubs; and establish mechanisms for Harvard community members to report on one another and send those reports to the government.
c. When, on April 14, 2025, Harvard refused to accede to these demands, the government’s retribution was swift. Hours later, the government froze more than $2.2 billion in federal funding critical to the support of ongoing cutting-edge research at Harvard—research with the potential to improve the health and safety of millions of Americans through better cancer treatments, model and manage the spread of infectious disease outbreaks, produce vital innovations in quantum computing and artificial intelligence, and reduce the short- and long-term consequences of battlefield-related injuries, among myriad other developments and discoveries.2
d. The next day, on April 15, 2025, President Trump posted on Truth Social suggesting that “Harvard should lose its Tax-Exempt Status” as a not-for-profit educational institution under Section 501(c)(3) of the Internal Revenue Code, “if it keeps pushing political, ideological, and terrorist inspired/supporting ‘Sickness.’” But Harvard is not a commercial business and does not seek investors to fund its activities and then share in their proceeds. So, maintaining Section 501(c)(3) status—which permits the University to receive tax-deductible gifts, raise capital from investors on affordable terms, and provide access to federal student aid programs—is vital to Harvard’s existence as a modern research university dedicated to serving the public.
e. The following day, the President doubled down, asserting in a post on Truth Social that “Harvard has been hiring almost all woke, Radical Left, idiots and ‘birdbrains’ who are only capable of teaching FAILURE to students” and that “Harvard can no longer be considered even a decent place of learning, and should not be considered on any list of the World’s Great Universities or Colleges.” On April 16, Secretary Noem sent her letter to HIO, seeking eight broad categories of information on every international student studying at Harvard under an F-1 visa, threatening that failure to comply would be deemed a “voluntary withdrawal” of Harvard’s SEVP certification, and warning that “[t]he withdrawal will not be subject to appeal.” This demand was unprecedented, seeking information far beyond what DHS’s regulations require Harvard to maintain and report, and far beyond any request Harvard has received in its more than 70 years hosting foreign students under the F-1 visa program.
f. Just hours later, DHS issued a press release announcing both its cancellation of “two DHS grants totaling over $2.7 million to Harvard” as well as the Secretary’s “scathing letter demanding detailed records on Harvard’s foreign student visa holders’ illegal and violent acts.” The press release asserted that Harvard has allowed “anti-American, pro-Hamas ideology [to] poison[] its campus and classrooms” and “undermine America’s values.” It added that DHS’s demand for records encompassing thousands of student visa holders “follows President Donald J. Trump’s decision to freeze $2.2 billion in federal funding to Harvard University, proposing the revocation of its tax-exempt status over its radical ideology.” And it concluded by stating that “if Harvard cannot verify it is in full compliance with its reporting requirements, the university will lose the privilege of enrolling foreign students.”
g. Despite the unprecedented nature and scope of the April 16 demand, and the lack of any clear authority for most of the requests, Harvard worked diligently to collect and produce the information it is required to maintain and report under the SEVP program. On April 30, 2025, Harvard produced responsive information falling within 8 C.F.R. § 214.3(g)(1). Specifically, Harvard produced to DHS thousands of data points concerning its entire F-1 visa student population.
h. Then, on May 7, 2025, DHS notified Harvard that DHS believed Harvard’s initial production was incomplete and—now invoking all of its authority under 8 C.F.R. Part 214—asked for four of the eight categories of information referenced in the initial request. This request continued to be both unprecedented and well beyond the scope of the authority invoked by DHS. But in response, Harvard again conducted a search and again produced additional responsive information.
i. In the wake of Harvard’s productions, DHS summarily revoked Harvard’s SEVP certification on the basis that Harvard’s responses were “insufficient.” But it did not explain why that was so, let alone identify any actual noncompliance with the governing regulations or follow any of the detailed processes required under the regulations prior to revoking a school’s certification.
j. DHS’s revocation letter leaves no doubt that the revocation is part of DHS’s campaign to coerce Harvard into surrendering its First Amendment rights. The letter declares: “Consequences must follow to send a clear signal to Harvard and all universities that want to enjoy the privilege of enrolling foreign students, that the Trump Administration will enforce the law and root out the evils of anti-Americanism and antisemitism in society and campuses.” Or put another way: because the Administration perceives that members of Harvard’s community have the wrong viewpoints, Harvard will be punished until it alters its viewpoints to satisfy the Administration’s demands.
12. The surrounding events, and Defendants’ express statements, make clear that DHS took these actions not for any valid reason, but purely as punishment for Harvard’s speech, its perceived viewpoint, and its refusal to surrender its academic independence or relinquish its constitutional rights. A central tenet of our constitutional system is that the government cannot “invok[e] legal sanctions and other means of coercion” to micromanage private speech. Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S. 175, 189 (2024) (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67 (1963)). And it is bedrock law that the viewpoint-based justifications the government has repeatedly and publicly invoked as a basis for its campaign against Harvard are a particularly “egregious form of content discrimination,” subject to the strictest scrutiny. Reed v. Town of Gilbert, 576 U.S. 155, 168-69 (2015) (quotation marks omitted). Those First Amendment concerns are heightened here, as “academic freedom” is “a special concern of the First Amendment,” Keyishian v. Bd. of Regents of Univ. of N.Y., 385 U.S. 589, 603 (1967). The government’s actions violate Harvard’s rights under the First Amendment several times over.
13. Compounding these First Amendment infirmities, the government’s retaliatory revocation of Harvard’s certification is the very definition of arbitrary and capricious agency action proscribed by the APA. DHS provided no coherent reason for taking these actions, and its revocation fully bypassed the detailed statutory and regulatory framework governing the F-1 and J-1 visa programs, which specify procedures and standards for revoking a school’s certification—all of which the government ignored. And the government’s actions run roughshod over the procedural due process protections of fair notice and an opportunity to respond owed to Harvard under the U.S. Constitution and the APA as the holder, for more than 70 years, of a government license to participate in the F-1 visa program.
14. There is no lawful justification for the government’s unprecedented revocation of Harvard’s SEVP certification, and the government has not offered any. DHS’s actions go well beyond terminating the visa of any individual student—or even a category of students—for noncompliance with immigration laws. They target Harvard itself, and for no remotely cognizable purpose. Harvard is fully committed to ensuring the integrity of its SEVP certification. Indeed, the government has continuously certified Harvard to host F-1 visa students for more than seven decades across 14 presidential administrations.
15. The government has casually discarded core First Amendment protections, the protections of procedural due process, and DHS’s own regulations to immediate and devastating effect for Harvard and its community. Harvard’s more than 7,000 F-1 and J-1 visa holders—and their dependents—have become pawns in the government’s escalating campaign of retaliation. Effective immediately, Harvard may no longer sponsor or host F-1 or J-1 visa students. It cannot issue Form I-20s to new students, including those who have been admitted for the upcoming summer and fall terms. The thousands of international students who are scheduled to come to campus for the summer and fall terms will no longer be able to enter the country. And the several thousand international students currently present in the United States—who constitute more than a quarter of Harvard’s student population—are subject to immediate removal from the United States just days before many are to graduate with degrees.
16. Immediate relief is necessary to restore Harvard’s SEVP certification and to stop the government’s arbitrary, capricious, unlawful, and unconstitutional action.
JURISDICTION AND VENUE
17. This action arises under the Administrative Procedure Act (APA), 5 U.S.C § 551 et seq.; the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq., and its implementing regulations; and the United States Constitution.
18. This Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1331. Because this suit seeks relief other than money damages and instead challenges Defendants’ unlawful actions, the United States has waived sovereign immunity from this suit. 5 U.S.C. § 702.
19. The Court is authorized to award the requested declaratory and injunctive relief under 5 U.S.C. §§ 702, 703, 705, and 706; 28 U.S.C. §§ 2201 and 2202; 42 U.S.C. § 1988; and through the equitable powers of this Court.
20. Venue is proper in this District under 28 U.S.C. § 1391(e)(1), because Defendants are agencies of the United States and officers of the United States acting in their official capacity, and a substantial part of the events or omissions giving rise to the claims occurred in this District, and Harvard resides in this District.
21. Harvard has standing to bring this case. Defendants’ actions—unless halted by this Court—will cause an imminent, concrete, and irreparable injury to Harvard, its students and faculty, and its ability to achieve its educational mission.
PARTIES
22. Plaintiff President and Fellows of Harvard College is a non-profit corporation that is the senior governing board of the organization known as Harvard University. Harvard is a private research university and the oldest institution of higher learning in the United States. Harvard’s 13 schools provide undergraduate and graduate instruction and degree programs to more than 24,000 enrolled students annually, including more than 5,000 international students who study in the United States on F-1 visas. Additionally, Harvard sponsors approximately 2,000 recent graduates who are working in jobs across the country on F-1 visas as part of the Optional Practical Training (OPT) and STEM OPT programs. And Harvard also hosts several hundred individuals who hold J-1 visas.
23. Defendant United States Department of Homeland Security (DHS) is a cabinet-level Department of the federal government. DHS is responsible for overseeing enforcement and implementation of certain provisions of the Nation’s immigration laws by all DHS subagencies and personnel.
24. Defendant Kristi Noem is the Secretary of DHS. Defendant Noem is sued in her official capacity.
25. Defendant United States Immigration and Customs Enforcement (ICE) is a component of DHS. ICE is responsible for administering SEVP and overseeing proceedings to grant, recertify, and withdraw an institution’s SEVP certification.
26. Defendant Todd Lyons is the Acting Director of ICE. Defendant Lyons is sued in his official capacity.
27. Defendant Student and Exchange Visitor Program (SEVP) is a component of ICE. SEVP is responsible for administering the F-1 visa program and proceedings to grant, recertify, and withdraw an institution’s SEVP certification.
28. Defendant John Doe is the Director of SEVP. Director Doe is sued in his official capacity.
29. Defendant James Hicks is the Deputy Assistant Director of SEVP. Defendant Hicks is sued in his official capacity.
30. Defendant United States Department of Justice is a cabinet-level Department of the federal government. The Department of Justice is charged with overseeing domestic enforcement of federal laws.
31. Defendant Pamela Bondi is the Attorney General of the United States. Defendant Bondi is sued in her official capacity.
32. Defendant United States Department of State is a cabinet-level Department of the federal government. The State Department is responsible for conducting American foreign policy and diplomacy, and relevant here, for administering the J-1 Exchange Visitor Program.
33. Defendant Marco Rubio is the Secretary of State. Defendant Rubio is sued in his official capacity.
STATUTORY AND REGULATORY FRAMEWORK
A. The F-1 Visa Program and SEVP Certification[/b]
34. SEVP is a federally regulated program that recognizes the inherent value in bringing the best and brightest students—wherever they are found—to the United States, to study and contribute to American academic institutions.
35. Under the INA, certain international students are permitted to attend American universities on nonimmigrant F-1 visas. An F-1 visa permits international students to enter and be lawfully present in the United States to complete their courses of study, among other things.
36. Eligibility to maintain F-1 status is governed by 8 U.S.C. § 1101(a)(15)(F)(i) and 8 C.F.R. § 214.2(f).
37. As relevant here, in order to qualify for an F-1 visa, a noncitizen must: (1) “hav[e] a residence in a foreign country which he has no intention of abandoning”; (2) be “a bona fide student qualified to pursue a full course of study”; and (3) “seek[] to enter the United States temporarily and solely for the purpose of pursuing such a course of study … at an established college, university, … or other academic institution … particularly designated by him and approved by the Attorney General.” 8 U.S.C. § 1101(a)(15)(F)(i) (emphasis added).
38. The statutorily mandated process by which schools are “approved by the Attorney General” to host students who hold F-1 visas is administered by SEVP, a subcomponent of ICE (within DHS).3
39. The process for seeking the required approval is known as “SEVP certification,” see, e.g., 8 C.F.R. § 214.3(f), and a school that receives that approval is said to be “SEVP-certified,” see, e.g., id. § 214.2(f)(4).
40. The requirements for obtaining SEVP certification are set out in 8 C.F.R. § 214.3.
41. To begin the SEVP certification process, a school must “file a petition for certification” with DHS using an online portal known as “the Student and Exchange Visitor Information System,” or SEVIS, and pay a filing fee. Id. §§ 214.3(a)(1), 103.7(d)(2)(i).
42. The requirements for obtaining initial SEVP certification (the “Initial Certification Criteria”) are enumerated in the governing regulation. The school “must establish at the time of filing” that it: (A) “
s a bona fide school”; (B) “s an established institution of learning or other recognized place of study”; (C) “[p]ossesses the necessary facilities, personnel, and finances to conduct instruction in recognized courses”; and (D) “s, in fact, engaged in instruction in those courses.” Id. § 214.3(a)(3)(i)(A)-(D).
43. After receiving its initial certification, a school must petition to renew that certification every two years, see id. § 214.3(h)(2); 8 U.S.C. § 1762(a).
44. To “be eligible for recertification,” the school must establish that: (A) it “[r]emains eligible for [initial] certification in accordance with paragraph (a)(3)(i) of this section” (that is, it continues to satisfy the four Initial Certification Criteria); and (B) the school and its Designated School Officials (DSOs) have “complied during its previous period of certification … with recordkeeping, retention, and reporting requirements and all other requirements of paragraphs (g), (j), (k), and (l) of this section” (the “Compliance Criteria”). 8 C.F.R. § 214.3(a)(3)(ii)(A)-(B); see also id. § 214.3(h)(2)(iii)(B) (stating that individual DSO compliance may be considered).
45. Section 214.3(g) of the regulations enumerates the Compliance Criteria relating to a school’s recordkeeping, retention, and reporting obligations. It requires schools to “keep records containing certain specific information and documents relating to each F-1 … student” and to “furnish the[se records] to DHS representatives upon request.” Id. § 214.3(g)(1).
46. DHS defined and limited this “specific information” by regulation. The information includes the student’s name, “date and place of birth, [and] country of citizenship”; the “[c]urrent address where the student and his or her dependents physically reside”; the student’s “[r]ecord of coursework”; his “[a]cademic status,” including “the effective date or period if suspended, dismissed, placed on probation, or withdrawn”; and, if applicable, a “[t]ermination date and reason.” Id. § 214.3(g)(1)(ii)-(iv), (vi), (ix). These categories largely track the information that the school is required to maintain by statute. See 8 U.S.C. § 1372(c)(1).
47. Sections 214.3(j)-(l) of the regulations set forth the additional Compliance Criteria a school seeking recertification must satisfy. Section 214.3(j) limits schools to certain specified language when discussing their SEVP certification in advertising or promotional materials. See 8 C.F.R. § 214.3(j). Section 214.3(k) provides that the school may only issue a Form I-20—a critical document in the noncitizen’s F-1 visa application—to foreign students who have applied to the school in writing and have been accepted on the merits. See id. § 214.3(k). And Section 214.3(l) requires schools to designate one Principal Designated School Official (PDSO) and any number of additional DSOs, “whose compensation does not come from commissions for recruitment of foreign students,” to advise F-1 students “regarding maintenance of nonimmigrant status and to support timely and complete recordkeeping and reporting to DHS.” Id. § 214.3(l)(1)(ii)-(iii). These are the only recertification eligibility requirements specified in DHS’s regulations.
B. Withdrawal of SEVP Certification
48. In addition to the ordinary biennial recertification process described above, the regulations provide that DHS may review and (if warranted) withdraw a school’s certification “in accordance with the provisions of [8 C.F.R. § 214.4],” id. § 214.3(f)(1). The regulations refer to this alternative means of withdrawing a school’s certification as an “out-of-cycle review” leading to “[w]ithdrawal on notice.” Id. § 214.4(b).
49. SEVP may initiate an out-of-cycle review of a school’s certification “to verify the school’s compliance with the recordkeeping, retention, reporting and other requirements of paragraphs (f), (g), (j), (k), and (l) of this section to verify the school’s continued eligibility for SEVP certification pursuant to paragraph (a)(3) of this section.” Id. § 214.3(h)(3)(iii).
50. As part of this out-of-cycle review process, “SEVP may request a school to electronically update all Form I-17 fields[4] in SEVIS and provide “documentation supporting the update” and “[t]he school must complete such updates in SEVIS and submit the supporting documentation to SEVP within 10 business days of the request from SEVP.” Id. § 214.3(h)(3)(ii).
51. If DHS identifies any non-compliance during the out-of-cycle review process, the regulations give the agency only two options for taking adverse action against the school: it may (1) “initiate remedial action with the school, as appropriate,” or (2) “initiate withdrawal proceedings against the school pursuant to [8 C.F.R. § 214.4.(b)] if noncompliance or ineligibility of a school is identified.” Id. § 214.3(h)(3)(iii); see also id. § 214.3(h)(3)(vi) (providing that “SEVP will institute withdrawal proceedings in accordance with [8 C.F.R. § 214.4(b)] if, upon completion of an out-of-cycle review, SEVP determines that a school or its programs are no longer eligible for certification”).
52. The regulations do not create any mechanism for summary withdrawal of a school’s certification after an out-of-cycle review has been conducted. Instead, DHS’s authority to revoke a certification is limited both substantively and procedurally.
53. Substantively, DHS may seek to withdraw a school’s certification if (after conducting this out-of-cycle review process) it determines that the school “has failed to sustain eligibility or has failed to comply with the recordkeeping, retention, reporting and other requirements of paragraphs (f), (g), (j), (k), and (l) of this section,” id. § 214.3(e)(4)(ii) & (f)(1)—in other words, if it fails to satisfy either the Initial Certification Criteria or the Compliance Criteria.
54. Section 214.4 likewise provides that SEVP certification may be withdrawn under this out-of-cycle review mechanism only “if the school … is determined to no longer be entitled to certification for any valid and substantive reason.” Id. § 214.4(a)(2); see 8 U.S.C. § 1762(c) (stating that “[m]aterial failure … to comply with the [specified] recordkeeping and reporting requirements to receive nonimmigrant students” is grounds for withdrawal of certification).
55. The regulation lists 19 “valid and substantive reason[s]” for withdrawing certification. One such reason is “[f]ailure to comply with [8 C.F.R. § 214.3(g)(1)] without a subpoena.” 8 C.F.R. § 214.4(a)(2)(i). Others include failure to adhere to the Initial Certification Criteria, id. § 214.4(a)(2)(xii)-(xiii), (xv)-(xvii); failure to comply with the Compliance Criteria, see id. § 214.4(a)(2)(i)-(iv), (viii)-(x), (xiv), (xviii)-(xix); and misconduct by or lack of qualification of the school’s DSOs, see id. § 214.4(a)(2)(v)-(vii).
56. Procedurally, even where DHS identifies a “valid and substantive reason” for withdrawing a school’s certification, the regulations do not permit DHS to summarily decertify a school as DHS did here. Instead, Section 214.4 establishes a detailed set of procedures that DHS must follow if it wishes to withdraw certification pursuant to out-of-cycle review (i.e., outside the biennial recertification process).
57. The process for withdrawal of certification following out-of-cycle review is governed by 8 C.F.R. § 214.4(b), which is entitled “Withdrawal on notice.” As the name reflects, DHS may initiate withdrawal-on-notice proceedings only by serving the school with a notice known as a “Notice of Intent to Withdraw” or NOIW. Id. § 214.3(e)(4). The NOIW must “inform the school” of “[t]he grounds for withdrawing SEVP certification.” Id. § 214.4(b)(1).
58. The issuance of a NOIW is the first step in what the regulations elsewhere refer to as “withdrawal proceedings.” Id. § 214.3(h)(3)(iii). Those proceedings involve detailed procedural protections—including administrative appeals—prior to effectuating a withdrawal of certification.
59. Upon receipt of a NOIW, the school has 30 days to submit an answer either admitting or denying the allegations in the NOIW and supporting its position with “sworn statements, and documentary or other evidence, to rebut the grounds for withdrawal of certification.” Id. § 214.4(b)(2); see id. § 214.4(d)-(e). The school may also submit “a written request … for a telephonic interview in support of its response to the NOIW.” Id. § 214.4(b)(3). And the school is permitted to be represented by counsel during these proceedings. See id. § 214.4(c).
60. If DHS wishes to proceed with withdrawing the school’s certification following this period of review, it must issue a written decision explaining “the specific reasons for” its decision. Id. § 103.3(a)(1)(i); see id. § 214.4(g).
61. The regulations also provide that “[a] school can voluntarily withdraw from SEVP … in lieu of complying with an out-of-cycle review or request.” Id. § 214.3(h)(3)(vii). To do so, the school generally must “initiate voluntary withdrawal by sending a request for withdrawal on official school letterhead to SEVP.” Id. (emphasis added). The regulations also state that “[f]ailure of a school to comply with an out-of-cycle review or request by SEVP will be treated as a voluntary withdrawal.” Id. This voluntary withdrawal procedure can only be read as applying in cases where no out-of-cycle review in fact occurs, despite the agency’s desire to conduct such a review, because of the school’s decision to withdraw from the program in lieu of compliance.
62. In sum, the regulations provide DHS with only two means of terminating a school’s existing F-1 visa program outside of the normal biennial recertification process: First, DHS can withdraw a certification only by issuing a NOIW and initiating “withdrawal proceedings” pursuant to 8 C.F.R. § 214.4(b). Second, if DHS initiates an out-of-cycle review and the school wishes to acquiesce in the withdrawal of its certification, it can “voluntarily withdraw” its certification either by submitting a letter to that effect or simply by declining to engage with the out-of-cycle review process.
63. Upon information and belief, prior to the decertification decision in this case, no school had ever had its SEVP certification revoked for any reason other than failure to meet the eligibility criteria for certification or failure to comply with the recordkeeping, retention, reporting, and other requirements set out in the federal regulations governing certification.
C. The Administrative Appeals Process for Challenging Revocation of SEVP Certification
64. The regulatory scheme also entitles a school whose certification is withdrawn to file an administrative appeal of that decision. Specifically, the regulations authorize the school to “file an [administrative] appeal of a … withdrawal [of certification] no later than 15 days after the service of the decision by ICE.” Id. § 214.4(h).
65. Publicly available guidance documents promulgated by DHS and ICE describe the multi-step appeal process.5
66. In the first instance, an administrative appeal is assigned to the same “adjudicator who originally adjudicated the case to determine whether to uphold or overturn the original decision.” Ex. 2.
67. If the original adjudicator affirms his earlier decision, the case proceeds to the Administrative Appeals Team, or AAT, which “reviews the case and all the evidence relating to the petition” and “draft[s] a preliminary appeal decision.” Id.
68. That preliminary decision is then subject to “[l]egal and [r]egulatory [r]eview” to “ensure regulatory compliance and legal sufficiency.” Id.
69. From there, a different body known as the Final Appeals Authority, or FAA, “reviews the entire case proceedings to ensure understanding of [the] case, including both comments from the AAT adjudicator and from the legal entity” that performed the legal and regulatory review. Ex. 1.
5 See DHS, General Appeals Process Information (attached as Exhibit 1) (describing administrative appeals process); ICE, Appeal Processing Steps (attached as Exhibit 2) (same). The processes outlined in these two documents are substantively identical.
70. The AAT adjudicator then reviews the FAA’s comments and makes any necessary changes. See id.
71. Afterward, the decision is returned to the FAA for approval of a final, signed appellate decision. See id. That “final decision is then issued to the petitioner and [its] attorney, if applicable, via email.” Ex. 2.
72. This administrative appeals process “takes roughly 60 business days.” Ex. 1.
D. Consequences of Withdrawing SEVP Certification
73. The consequences of withdrawing SEVP certification are drastic—for the school that loses certification, for its students, and for its broader community.
74. Effective immediately upon DHS’s decision, the school may no longer issue new Forms I-20 to foreign students as needed to allow them to obtain F-1 visas and therefore admission into the United States. 8 C.F.R. § 214.4(i)(1). The effect is to preclude the school from accepting any new foreign students to its programs.
75. With respect to current students with F-1 status, students whose school is decertified are, necessarily, no longer “pursuing a full course of study at an educational institution certified by SEVP for attendance by foreign students,” id. § 214.2(f)(5)(i), and thus are at immediate risk of losing their F-1 status.
76. A student who remains in the United States after his or her F-1 status is terminated is unlawfully present and may be placed in removal proceedings. See 8 U.S.C. § 1227(a)(1)(C)(i). A noncitizen who remains unlawfully present for more than 180 days is thereafter rendered inadmissible for a period of three years. See id. § 1182(a)(9)(B)(i)(I), (ii).
77. As a practical matter, the regulations and publicly available guidance indicate that loss of a student’s F-1 status is triggered not on the date of the school’s decertification, but rather on the later date when the school’s access to the online SEVIS portal is terminated—known as its “SEVIS access termination date.” 8 C.F.R. § 214.4(i)(2). On this date, DHS “will automatically terminate any remaining Active SEVIS records for that school.” Id.6
78. Termination of SEVIS records presents student visa holders whose school loses its certification with two bad choices: (a) attempt the uncertain path of securing immediate “[t]ransfer to another SEVP-certified school,” which typically will not be feasible—much less guaranteed—in the middle of an academic year (particularly when thousands of students are seeking transfers en masse), or (b) “[d]epart the United States.” Ex. 3 at 2.
79. Although termination of SEVIS access eventually follows from withdrawal of certification, DHS must make an independent determination as to when it occurs—and thus when to terminate the status of its F-1 visa students. “In most situations,” and unless the school is “suspected of criminal activity or poses a potential national security threat,” DHS “will not determine a SEVIS access termination date for that school until the [administrative] appeals process has concluded and the … withdrawal has been upheld.” 8 C.F.R. § 214.4(i)(2). In determining the SEVIS access termination date, DHS “will consider the impact that such date will have upon SEVP, the school, and the school’s nonimmigrant students.” Id.
80. A school whose certification is withdrawn is ineligible to petition again for SEVP certification until one year after withdrawal, and even then, “[e]ligibility to re-petition will be at the discretion of the Director of SEVP.” Id. § 214.4(a)(2).
E. The J Visa Program
81. The J visa is the nonimmigrant visa class for foreign citizens who are approved to participate in an exchange visitor program in the United States, 8 U.S.C. § 1101(a)(15)(J), including as students, professors, and research scholars. 22 C.F.R. § 62.4.
82. To host individuals on J-1 visas, an institution must be designated as an “Exchange Visitor Program sponsor” by the Department of State. 22 C.F.R. § 62.3, 62.5.
83. Revocation of a sponsor’s Exchange Visitor Program designation is governed by 22 C.F.R. § 62.50(d). The provision authorizes the Department of State’s Office of Exchange Coordination and Designation (the “Office”) to serve a sponsor with written notice of its intent to revoke the sponsor’s Exchange Visitor Program designation “pon a finding of any act or omission set forth in [paragraph (a) of the regulation].” 22 C.F.R. § 62.50(d). Paragraph (a), in turn, provides notice of intent to revoke may be issued upon a finding that the sponsor has violated one or more provisions of 22 C.F.R. Part 62; evidenced a pattern of failure to comply with one or more provisions of 22 C.F.R. Part 62; committed an act of omission or commission, which has or could have the effect of endangering the health, safety, or welfare of an exchange visitor; or otherwise conducted its program in such a way as to undermine the foreign policy objectives of the United States, compromise the national security interests of the United States, or bring the Department or the Exchange Visitor Program into notoriety or disrepute. 22 C.F.R. § 62.50(a).
84. Upon such a finding, the regulations afford sponsors notice and an opportunity to be heard before the revocation takes effect:
a. The Office must provide at least 30 days’ written notice of its intent to revoke. 22 C.F.R. § 62.50(d)(1).
b. That notice must “specify the grounds for the proposed sanction and its effective date, advise the sponsor of its right to oppose the proposed sanction, and identify the procedures for submitting a statement of opposition thereto.” Id.
c. The sponsor is then afforded the opportunity to submit a statement in opposition to or mitigation of the proposed sanction, the submission of which serves to stay the effective date of the proposed sanction pending decision of the Principal Deputy Assistant Secretary for Educational and Cultural Affairs. 22 C.F.R. § 62.50(d)(2)(i)-(ii). The Principal Deputy Assistant Secretary is then responsible for reviewing the submissions of both the sponsor and the Office and either modifying, withdrawing, or confirming the proposed sanction by serving the sponsor a written decision that specifies the grounds for the sanction, identifies its effective date, advises the sponsor of its right to request a review, and identifies the procedures for requesting such review. 22 C.F.R. § 62.50(d)(2)(v).
85. The effect of an order of revocation is outlined in 22 C.F.R. § 62.50(i). A sponsor against which an order of revocation “has become effective may not thereafter issue any Certificate of Eligibility for Exchange Visitor (J-1) Status (Form DS-2019) or advertise, recruit for, or otherwise promote its program.” 22 C.F.R. § 62.50(i). And even where the sponsor has already issued a Form DS-2019, the sponsor may not under any circumstances “facilitate the entry of an exchange visitor into the United States” after revocation. Id. The regulation also expressly states that an order of revocation “will not in any way diminish or restrict the sponsor’s legal or financial responsibilities to existing program applicants or participants.” Id.