Reinstatement of M-1 Status

 

Introduction: Reinstatement of M-1 Status

m-1 visaA student studying the in the United States on M-1 status is required to uphold the requirements of M status in order to remain in status. An M-1 student who violates the rules of M-1 status will be rendered out of status. Depending on the facts of the situation and the specific violation that caused the M-1 student to lapse in status, the student may be eligible to apply for reinstatement of M-1 status without departing the United States. This article will explain the rules and regulations for applying for reinstatement of M-1 status.

To learn about applying for and maintaining M-1 student status, please review the student visas section of our website.

Eligibility for Reinstatement of M-1 Status

The regulations allowing for reinstatement of M-1 status are found in 8 C.F.R. 214.2(m)(16). In order to apply for reinstatement of M-1 status, the student must file a Form I-539, Application to Extend/Change Nonimmigrant Status (with fee) in order to request reinstatement (see page 3 for filing requirements). The Form I-539 must be accompanied by a properly completed SEVIS Form I-20 that includes a recommendation from the student's Designated School Official (DSO) for reinstatement of status. The application must explain the reasons for the violation and include evidence that the student will have the requisite financial support to pursue the course of study for which he or she was granted an M-1 visa for. Any M2 dependents must be included on the application for reinstatement.

The regulation states that USCIS may consider granting the request for reinstatement only 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 the Service regulations;
  • C. Is currently pursuing, or intends to pursue, a full course of study at the school which issued the Form I-20M-N or SEVIS Form I-20;
  • D. Has not engaged in unlawful 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 regulations restrict the circumstances in which an M-1 student whose status has lapsed may be granted reinstatement of M-1 status. Of note, the M-1 student must generally seek reinstatement within 5 months of the status violation. The student must also not have repeated violations of his or her status, must have the resources to engage in the full course of study that status was approved for, and must not have engaged in unlawful employment or be subject any other deportability grounds under section 237 of the Immigration and Nationality Act (INA). Furthermore, the student must demonstrate that the violation occurred through no fault of his or her own. For these reasons, reinstatement of M-1 status is only possible for certain violations of M-1 status.

While reinstatement is pending, the student must continue to study.1 If USCIS grants reinstatement of M-1 status, it will endorse the student's copy of the Form I-20 and forward the information to the school. The student's M-1 visa will remain valid so long as it has not expired.

Denial of Reinstatement

The decision to grant or deny reinstatement is 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 the decision to deny reinstatement of F1 status (which has very similar reinstatement rules and procedures) is not reviewable by an Immigration Judge or the BIA.

If reinstatement is denied, the student is considered to have lost M-1 status, and his or her visa will be invalidated in accordance with section 222(g) of the Immigration and Nationality Act (INA). In this situation, 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 M-1 status to subsequently apply for and obtain a new student visa from abroad. However, it notes that in such a case, consular officers should examine why the student lost his or her M-1 status, including any status violations, when determining whether “the applicant is a bona fide student at the time of the application.”2

Conclusion: When to Apply for Reinstatement of M-1 Status?

M-1 students who end up out of status have two options for endeavoring to continue studying in the United States:

  • Apply for reinstatement of M-1 status;
  • Depart the United States and attempt reenter after obtaining a new Form I-20 and M-1 visa.

The best option in a given case will depend on the nature of the violation and the student's specific situation. It is important for the student to consult with his or her DSO for guidance on how to proceed. A student may also wish to consult with an experienced immigration attorney for an assessment of the situation and guidance on how different choices may affect his or her immigration situation.

It is important to bear in mind that processing times may vary for M-1 reinstatement adjudications. That it may take USCIS several months to render a decision should factor into determining whether seeking reinstatement of M-1 status is the best option in a given case.

If reinstatement is denied, it is imperative that the student and any associated derivatives depart the United States immediately. Remaining in the United States after reinstatement is denied leads to the accrual of unlawful presence. 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.

Due to the time-sensitive nature of applying for reinstatement of M-1 status, it is crucial for a student who suffers a lapse in status to determine the best path forward expeditiously.

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  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. 891, Print. Treatises & Primers