Dream Derailed Leads to Lawsuit Against Berkeley

A former international student has filed suit claiming the university's international student advising office misinformed him of a deadline to apply for authorization to work in the U.S.

March 19, 2021
 
Henrique Faria

A former international student at the University of California, Berkeley, is suing the institution for misinforming him of a deadline for applying for authorization to work in the U.S. and costing him his “dream job” in New York. The student alleges the university's admitted error triggered a chain of events that led to him being arrested by U.S. immigration enforcement agents and escorted to a Brazil-bound plane in shackles and handcuffs.

The lawsuit was first reported by NBC News. It is one of several recent suits involving alleged errors made by college officials charged with advising international students and highlights the stakes for international students, and the institutions they attend, when it comes to applications for work authorization through a federal program that allows international students to work in the U.S. temporarily while remaining on their student visa.

According to the complaint, the former student, Henrique Faria, enrolled in a master of law, or L.L.M., program in international tax law at Berkeley in the 2017-18 academic year after a nine-year career as a lawyer in his home country of Brazil. Upon graduation he earned a job as a senior adviser for an international tax services practice at the New York City offices of Ernst & Young, a major multinational financial services and consulting firm, earning an annual base salary of $120,000. He leased and furnished an apartment and prepared to take the New York bar exam in February 2019.

None of it came to pass. In order to start the job, Faria had to apply for an employment authorization document from U.S. Citizenship and Immigration Services through the optional practical training, or OPT, program. He claims the institution misinformed him about the deadline for applying and told him it was May 9, 2018, when it was actually May 6, 2018. His application to U.S. Citizenship and Immigration Services for work authorization arrived two days late and was denied.

The complaint quotes a letter from the director of Berkeley’s international office acknowledging an error on its part. Specifically, the letter, as quoted in the complaint, states that “an erroneous slide on a powerpoint [sic] presentation providing instructions to students on how to complete the application contributed to the denial of Henrique’s application for OPT.”

"Since only Defendant’s agents knew the correct deadline, only they could correct it," Faria's attorneys argue in a court document. "Over the next three months, they violated their duty to monitor Faria’s status. Had they looked once, they would have seen [US]CIS blinking a bright red light: it had not received Faria’s application to extend his visa, which meant it would be denied. Still, Defendant had two months after [US]CIS blinked red to save Faria’s job and even more time -- after it discovered its blunders -- to salvage his career. Instead, it did nothing. Defendant’s agent told Faria (i) [sic] UC could not spare the money to salvage his career and (2) he should stop fighting and return to Brazil. That advice got Faria him [sic] arrested and deported."

NBC News confirmed with immigration authorities that Faria was detained at the airport by Customs and Border Protection agents, though immigration officials declined to discuss specifics of his case.

Faria's lawsuit, filed in the Superior Court of California in Alameda County against the Regents of the University of California, alleges breach of implied and express agreements and a variety of claims related to negligence and negligent misrepresentation. A lawyer for Faria shared court documents but was not available for an interview.

The University of California has asked the court to dismiss the case, arguing that Faria’s complaint “is fatally flawed in that it alleges causes of action for which The Regents is immune, and otherwise fails to state facts sufficient to constitute any cause of action.”

The university argues that Faria’s claims are barred by qualified immunity, a doctrine that shields government officials from lawsuits except in cases where officials violated a “clearly established” statutory or constitutional right. The Supreme Court has held that “qualified immunity balances two important interests -- the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”

“This is the classic case of ‘shielding officials from harassment, distraction, and liability’ when the facts as alleged suggest a mere mistake in the performance of their duties,” Berkeley argues in a court motion.

The UC system referred questions to Berkeley, which declined comment beyond the responses in its court filings.

“Speaking generally regarding our process, the campus makes its best effort to support its students who are navigating the complexities of the immigration system,” the university said in a written statement.

The number of international students obtaining work authorization after graduation through OPT has surged in recent years, fueled in large part by an extension of the work authorization period to three years for students studying science, technology, engineering and mathematics fields. (Students studying non-STEM fields continue to be eligible for one year of OPT after they graduate.) In 2019-20, there were 223,539 students participating in optional practical training, up from 147,498 in 2015-16, according to the Institute of International Education’s Open Doors survey.

OPT is routinely granted for students who meet the requirements, but it’s governed by strict regulations regarding the time windows in which applications can be submitted. The stakes are high for international students who use the program to gain work experience in the U.S. and who often use it as a stepping-stone from a student visa to another temporary or permanent work visa.

“We’re generally seeing an increase in OPT denial for a variety of reasons. That is causing consternation for both international students and international offices at universities,” said Stephen Yale-Loehr, a professor of immigration law at Cornell University.

“I think that international student advisers feel torn because technically it’s the student’s responsibility to make sure that applications are filed on time, and the application is technically filed by the student, not by the school, so the school cannot be making sure that all applications are filed by the students in a timely manner,” Yale-Loehr said. “Schools do their best most of the time to educate students about all aspects of OPT applications, including filing deadlines, but ultimately it is the student’s responsibility to make sure that the application is filed on time.”

At least two other international students have filed lawsuits in federal court in recent years related to alleged errors by university officials that resulted in OPT applications being denied.

Rodney Smith, a citizen of Bermuda who earned a master’s in social work from Alabama Agricultural and Mechanical University in 2018, successfully sued USCIS over his denial. U.S. Senior District Judge C. Lynwood Smith Jr. issued a ruling in January ordering the agency to reopen Smith’s OPT application after he presented evidence that the denial was attributable to an error on the part of the international student adviser.

Ozcan Dalgic, a Turkish native and 2013 graduate of a doctoral program in physical therapy at Misericordia University in Pennsylvania, sued the university, alleging that Misericordia’s mistake in submitting his request for OPT prematurely, outside the time window permitted in the regulations, resulted in its denial. U.S. District Judge A. Richard Caputo ruled in favor of Dalgic, finding “the admissible record evidence demonstrates that there is no genuine issue of fact that Misericordia’s negligence caused the denial of Dalgic’s application to participate in OPT.”

Judge Caputo referred the matter to a jury trial for damages. Court records suggest the parties reached a settlement agreement.

Michael A. Olivas, a professor emeritus at the University of Houston Law Center and an expert on higher education and immigration law, said he believes Berkeley should settle with Faria.

“I think the university made a mistake here, if the facts as pleaded are correct,” Olivas said. “I’m assuming these people missed it in good faith, but there’s a certain point at which either you’re wrong or right, and I think they need to step up and correct this.”

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