Reinstatement of F1 Status

 

Introduction: Reinstatement of F1 Status

Reinstatement of F1 StatusIn order to maintain F1 student status, an F1 student must follow all of the rules and regulations associated with F1 status. An F1 student who violates the rules of his or her status will be considered to be out of status. An F1 student who is out of status may be eligible, depending on the type of status violation and the specific set of circumstances of the situation, to apply for reinstatement of F1 status without departing the United States. This article will explain the rules and regulations for applying for reinstatement of F1 status.

To learn about applying for and maintaining F1 student status, please review our selection of articles about F1 visas in the student visas section of this website.

Eligibility for Reinstatement of F1 Status

The regulations regarding the reinstatement of F1 student status are found in 8 C.F.R. 214.2(f)(16). In order to apply for reinstatement of F1 status, the student must make a request for reinstatement on a Form I-539, Application to Extend/Change Nonimmigrant Status (with fee), accompanied by a properly completed SEVIS Form I-20 [see page 3 for filing requirements]. The Form I-20 must include a recommendation for reinstatement of F1 status from the student's Designated School Official (DSO). The application must explain the reasons for the violation and that the student will have the requisite financial support to pursue a full course of study if reinstatement is granted. F2 dependents must be included on the application since their status depends on the principal F1's. The regulation states that United States Citizenship and Immigration Services (USCIS) may consider granting the request for reinstatement if the student:

  • A. Has not been out of status for more than 5 months at the time of filing the request for reinstatement (or demonstrates that the failure to file within the 5 month period was the result of exceptional circumstances and that the student filed the request for reinstatement as promptly as possible under these exceptional circumstances);
  • B. Does not have a record of repeated or willful violations of Service regulations;
  • C. Is currently pursuing, or intending to pursue, a full course of study in the immediate future at the school which issued the Form I-20;
  • D. Has not engaged in unauthorized employment;
  • E. Is not deportable on any ground other than section 237(a)(1)(B) or (C)(i) of the Act; and
  • F. Establishes to the satisfaction of the Service, by a detailed showing, either that:
    1. The violation of status resulted from circumstances beyond the student's control. Such circumstances might include serious injury or illness, closure of the institution, a natural disaster, or inadvertence, oversight, or neglect on the part of the DSO, but do not include instances where a pattern of repeated violations or where a willful failure on the part of the student resulted in the need for reinstatement; or
    2. The violation relates to a reduction in the student's course load that would have been within a DSO's power to authorize, and that failure to approve reinstatement would result in extreme hardship to the student.

The regulation makes it clear that reinstatement of F1 student status is not a catch-all remedy for any violation of F1 status. Students who allow their status to lapse in excess of five months (generally), engage in unauthorized employment, or are deportable for other reasons than the lapse of status will be ineligible for the reinstatement of F1 status. The student will also be required to satisfy USCIS that he or she would be able to comply with the requirements of F1 status after reinstatement. Furthermore, the student will be required to show that the lapse in status was caused by “circumstances beyond [his or her] control” or was caused by a reduction in his or her course load that would have been within a DSO's power to authorize. For these reasons, reinstatement of status is not an available remedy for every violation of F1 status.

While reinstatement is pending, the student must continue to study.1 However, the F1 student will not be eligible for on-campus employment or any other benefits of F1 status until reinstatement is granted. Under 8 C.F.R. 214.2(f)(8), a student may not transfer schools while reinstatement is pending. Time spent between the application for reinstatement of F1 status and the reinstatement of F1 status will not count toward eligibility for curricular practical training or optional practical training (OPT), although if reinstatement is granted, time spent on F1 status prior to the violation of F1 status will be counted.

If USCIS decides to grant reinstatement of F1 status, it will endorse the student's copy of the Form I-20 to indicate that the student has been reinstated to F1 status, and forward this information to the student's school. The student's F1 visa will remain valid so long as it has not expired.

Denial of Reinstatement of F1 Status

The decision to grant or deny reinstatement is fully within the discretion of USCIS. There are no grounds for appeal. The Board of Immigration Appeals (BIA) held in the Matter of Yazdani, 17 I&N Dec. 626 (BIA 1981) [PDF version] that USCIS's decision to deny reinstatement of student status is not reviewable by an Immigration Judge or the BIA.

If reinstatement is denied, the student is considered to have lost F1 status, and his or her visa will be invalidated in accordance with section 222(g) of the Immigration and Nationality Act (INA). Accordingly, the student is required to immediately depart the United States.

The Department of State (DOS) has stated that there is no bar for a student who was denied reinstatement of F1 status to subsequently apply for and obtain a new F1 visa from abroad. However, it notes that in such a case, consular officers should review the circumstances surrounding the student's loss of status, including any status violations, in determining whether “the applicant is a bona fide student at the time of the application.”2

Conclusion: When to Apply for Reinstatement of F1 Status?

F1 students whose status lapses have two options for attempting to continue studying in the United States:

  • Apply for reinstatement of F1 status;
  • Depart the United States and attempt reenter after obtaining a new Form I-20 and F1 visa.

The best option will depend on the facts of the situation. If a student is granted reinstatement of status, he or she will be able to have the time spent in status before the violation of F1 status and after reinstatement counted toward curricular practical training or OPT. However, if reinstatement is denied, the student will be required to depart the United States immediately. A student who departs and attempts to reenter with a new Form I-20 will, if successful, be treated as a new student and will not be able to count time spent in the first stint on F1 status toward benefits such as eligibility for curricular practical training or OPT.

Because a student cannot begin a new course of study while out of status, he or she can only have F1 status reinstated before the expiration of the course of study listed on the Form I-20, or within the 60-day grace period after the course of study is completed. Bearing this in mind, it is important to note that processing times vary, and it may take several months for USCIS to render a decision.

It is important to remember that remaining in the United States after reinstatement is denied will lead to the accrual of unlawful presence for the F1 student and any derivative F2s. The Seventh Circuit held in Young Dong Kim v. Holder, 737 F.3d 1181 (7th Cir. 2013) [PDF version] that a man who accrued over 180 days of unlawful presence after he his F2 visa was invalidated (on account of his wife being denied reinstatement to F1 status) was subsequently ineligible for adjustment of status.

A student who lapses in status should first consult with his or her DSO for an assessment of the situation and to determine whether the DSO is willing to endorse an application for reinstatement of F1 status. If so, the student is also well-advised to consult with an experienced immigration attorney for an opinion on whether seeking reinstatement of F1 status is the best immigration option given the unique facts of the situation.

Due to the time-sensitive nature of the situation, it is essential for a student who is out of status to work to find a solution immediately.

__________________

  1. Cable, DOS, 05-State-00232385 (Dec. 12, 2005), published on AILA InfoNet at Doc. No. 06011873
  2. Id.

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 888, Print. Treatises & Primers.