Transcript Immigration Updates from Los Angeles

F-1 Student Reinstatement
Regulations, Reality and Tips
Mindy Metzcar
Advisor, Office of International Services
Indiana University-Bloomington
Wendell Sparks
Director, International Students & Scholars Services
Bluegrass Community & Technical College
Sam Lockhart
Advisor, Immigration Services Office
University of Notre Dame
F-1 Student Reinstatement Topics
 Identifying a violation of status
 Determining eligibility for reinstatement
 Determining the necessity of reinstatement
 Proper filing procedure for reinstatement
 Adjudication Results
 Advisor follow-up
To Violate or Not to Violate?
Has there been a violation of status?
Prudent advisors are typically thorough in the discussion and
investigation of situations in which a student’s SEVIS record
may be terminated following a violation of status. The same
factors are often relevant in determining a student’s options for
reinstatement.
 What occurred?
 When did it occur?
 How did the student fail to maintain status?
To Reinstate or Not To Reinstate?
If there has been a violation of status:
 Is reinstatement possible?
 Was the student in lawful F-1 status at the time of the violation in
question?
 Is the student eligible for reinstatement under the regulations?
 Is reinstatement practical?
 Reinstatement versus travel and re-entry
 Timing of adjudication relative to program completion, potential
practical training and permanent departure
 Student’s long-term plans and those of any dependent family members
 Institutional Policies that affect decision to apply for reinstatement
Is Reinstatement Possible?
 To be eligible for reinstatement under 8 CFR 214.2(f)(16) a student
must demonstrate that:
 The student has not been out of status for more than 5 months
 Unless student can demonstrate “exceptional circumstances” that prevented
the filing of a timely application
 The student does not have a record of repeated violations
 The student is pursuing or will pursue a full course of study
 The student has not engaged in unauthorized employment
 The student is not deportable on any grounds other than the violation
in question
 The violation resulted from either
 Circumstances beyond the student’s control OR
 Dropping below a full course of study without authorization that could
otherwise have been granted by a DSO and that the student would
experience “extreme hardship” if USCIS were to deny the application for
reinstatement
Statutory Eligibility for Reinstatement
Five-month limitation and exceptions:
 Regulation requires that applicant not have “been out of status
for more than 5 months at the time of filing”
 When does the five-month clock begin--at the time of the violation or at
the time SEVIS record is terminated?
 “Exceptional circumstances” that prevent timely filing
Ineligibility due to unauthorized employment:
 Regs are clear with virtually no discernable ambiguity
 Circumstances that might compel student to file notwithstanding this
provision
 Anecdotal reports of surprising results
Statutory Eligibility (continued)
Circumstances “beyond the student’s control”:
 Regulation indicates that these 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”
 Use of the phrase “might include” would indicate that this list is not exclusive
 Many instances of DSO oversight with regard to SEVIS record maintenance
may be addressed through correction requests or data fixes and do not
require reinstatement
 Regulation specifically disqualifies students who demonstrate a
“pattern of repeated violations” or exhibit a “willful failure” to
maintain status
 Definition of a pattern
 Determining that there is a willful failure on the part of the student
Is Reinstatement Practical?
 Travel and re-entry as an alternative to reinstatement.
 Advantages:
 Often faster depending on availability of consular appointment.
 No interruption in studies
 Time accrued toward eligibility for practical training is sustained
 Disadvantages:
 Eligible to apply for visa only in country or residence
 Violation may affect visa application
 Potential interruption in studies or absence from campus
 Expense
 Travel
 New SEVIS fee
 New visa application
 Accrual of time towards eligibility for practical training starts over
Is Reinstatement Practical? (cont.)
Timing of an application for reinstatement
 Processing times for I-539 applications for student
reinstatement are currently 3-5 months at both CSC and VSC,
which can present challenges to students at the end of a
program
 If student plans to permanently depart the United States
Student may file but adjudication after departure or after program end
date may result in a denial
 If student plans to apply for OPT
 OPT recommendation may not be made for student with
reinstatement pending.
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 DSO may enclose letter requesting expedited processing of
reinstatement request if timing of the application warrants it
Is Reinstatement Practical? (cont.)
 Future plans
 Student may choose not to file or may be determined to be
ineligible for reinstatement
 Student and dependents become removable as of date SEVIS record is
terminated
 ICE may never show up
 ICE may show up within hours
 May affect future applications for benefits and/or other US visas.
 Status of any dependents is derivative of that of primary student
 If student is out of status, F-2 spouse and any F-2 children are also out of
status
 May affect dependents’ future applications for benefits and/or other US
visas
Is Reinstatement Practical? (cont.)
Institutional Policies that affect decision to apply for
reinstatement.
 Some institutions may have policies in place that deny
enrollment based on immigration status. This complicates
situation for students who violate status since being enrolled or
eligible to enroll is prerequisite for reinstatement.
 May be necessary to work with administration to permit enrollment
while reinstatement is pending
 Students who are otherwise ineligible for reinstatement may be
compelled to apply nonetheless to avoid withdrawal or dismissal
Essential Elements of the Application
The following items should be included in the application for reinstatement sent to
USCIS:
Original signed statement from student
Original completed I-539 with fee
Original I-20 issued for “Reinstatement Requested”
Student’s original I-94 card
Updated evidence of financial support
Copies of previous I-20 forms issued to the student
Copy of the student’s passport that include biographical and validity information
Copy of transcript, course registration, and/or other evidence of current and
previous full-time enrollment
 Copies of any additional relevant documentation
 I-901 receipt for payment of new SEVIS fee ONLY IF student has been out of
status for more than 5 months
Advisors may find it useful to maintain a procedural checklist that includes the required
elements for distribution to students when appropriate.
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Essential Elements (cont.)
 The original signed statement from student submitted with
the application should include the following:
 Description of the circumstances surrounding the violation
 Statement that the violation resulted from circumstances
beyond the student’s control or that denial would result in
extreme hardship to the student
 Statement that student is pursuing or will pursue a full course
of study
 Statement that the student has not been employed without
authorization
 Statement that the student is not in removal (deportation)
proceedings
Essential Elements (cont.)
 Important information regarding form I-539
 Be sure to use current version of the form
Current form revision date is 07/15/2010
Previous versions—12/11/2006, 10/26/2009 and 06/12/2009—are
currently accepted
 Form revision date may be found in lower right corner of each page
 Be sure student encloses proper filing fee
 Currently $300.00 - will change to $290.00 effective 11/23/2010
 USCIS typically returns petitions with incorrect or missing fees
unprocessed
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 Tips for completing form I-539
 Write “REINSTATEMENT” across top of page one in block letters
 Sections of form I-539 specific to reinstatement
 Page one, Part 2.1: Check box C indicating a request for “Reinstatement
to student status”
 Page two, Part 4.3.e: Check “Yes” indicating that a violation of status
Essential Elements (cont.)
• Where to file application
• I-539 forms for F-1 reinstatement are now filed at Dallas Lockbox
Facility:
All USPS mail:
USCIS
PO Box 660166
Dallas, TX, 75266
Express and courier deliveries:
USCIS
ATTN: I-539
2501 S. State Highway 121 Business
Suite 400
Lewisville, TX 75067
 Lockbox filing for I-539 form became effective 08/03/2010
 Forms filed with service centers were forwarded until 09/17/2010
Improperly filed applications are now returned to applicant unprocessed
 Applications are still adjudicated by either California or Vermont Service
Center based on geographic jurisdiction

Essential Elements (cont.)
 Generating a new I-20 for “Reinstatement Requested”
 DSO generates new I-20 through SEVIS RTI
 Batch interface will not accommodate a reinstatement request
 SEVIS record must be in either TERMINATED or COMPLETED status for Reinstatement option to
appear
 DSO clicks “Reinstate Student”
 SEVIS will prompt DSO to enter new financial, academic and other information as needed
 DSO may include comments on the reinstatement in the “Comments” field that will appear on page
one of the new I-20
 SEVIS will flash message to DSO that students out of status more than five months must provide
documentation justifying the delay.
 Message also refers to sending application o the “district office.” This is an error and may be
disregarded
 DSO clicks “Request Reinstatement” button
 Subsequent SEVIS screen will indicate that the update was successful
 DSO should record the Request ID that appears on this screen
o Once SEVIS navigates away from this screen the Request ID is no longer accessible
 DSO prints new I-20 that will reflect the issue reason “Reinstatement Requested”
 DSO and student review and sign new I-20
Essential Elements (cont.)
 Original I-94 card
 Officer will record the results of the adjudication if approved
 Updated evidence of financial support
 I-539 instructions require that students demonstrate that they have
the financial means to support themselves and pay for their education
 If submitting bank statements, USCIS may expect documentation of account
history for 3 preceding months or more
 Copies of previous I-20 forms issued to the student
 Provides a chronological history of the student’s activity
 Copy of the student’s passport that include biographical and
validity information
 Establishes continued eligibility for lawful presence in the United
States
Essential Elements (cont.)
 Copy of transcript, course registration, and/or other evidence of
current and previous full-time enrollment
 Establishes evidence of student’s intent to be a full-time student and
continued eligibility for student status
 Copies of any additional relevant documentation
 Letter from the DSO or other university administrator that reinforces
student’s assertions in his/her letter or further explains
circumstances of violation.
 Evidence of hardship that would result from a denial
 Evidence of circumstances that led to delayed filing, if applicable
 Other evidence related to student situation
 I-901 receipt for payment of new SEVIS fee—Required ONLY IF student
has been out of status for more than 5 months
Status While Application is Pending
 Eligibility for benefits
 Employment
 Off-campus employment authorization—CPT, OPT, Economic Hardship,
etc.-- is terminated in the event of a status violation
 On-campus employment
 Regulations establish on-campus employment as a benefit of a valid
immigration status, which would indicate that an out-of-status student
is not eligible
 Current SEVP FAQ state that a student may continue to engage in oncampus employment while reinstatement is pending if the student is
“otherwise eligible”
Status While Pending (cont.)
 Travel
 Departure from the United States while application is pending will result
in the application’s being considered abandoned
 Student becomes ineligible to return using current SEVIS record or
associated documents
 Student may attempt to re-enter United States with I-20 generated
from new initial SEVIS record
 Transfer
 In most cases, a terminated SEVIS record may be transferred to a new
school
 Student must apply for reinstatement using I-20 of the school s/he is
attending or will attend
 Transfer of a record after an application for reinstatement is filed may
result in the application being invalidated
Adjudication and DSO Follow-Up
 USCIS Service Center Discretion
 Definition of “exceptional circumstances” with respect to filing
within the 5-month period after the violation
 Definition of what circumstances are “beyond the student’s
control”
 Effect of employment after the violation that would otherwise
have been authorized had the violation not occurred
Adjudication and Follow-Up (cont.)
 Approval of reinstatement
 USCIS Officer updates SEVIS record
 PDSO and submitting DSO receive email notifications
 Written notification sent to student by mail
 I-20 stamped indicating reinstatement approved and mailed to student
 I-94 endorsed on back indicating reinstatement approved and mailed to
student
 Adjudication prior to program start date results in record being set to
INITIAL status
 Student must be registered within 30 days of program start date
 Adjudication after program start date results in record being set to
ACTIVE status
 DSO should verify that current session end and next session start dates are
accurate
Adjudication and Follow-Up (cont.)
 Request for Additional Evidence (RFE)
 Indicates that USCIS required additional evidence to favorably
adjudicate case
 RFE that requests information already submitted
 RFE that is inconsistent with benefit requested
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Refers to form not associated with case
Refers to proof of fact that seems irrelevant
 Contacting service centers for clarification
 [email protected]; [email protected]
 30-day response deadline
 Failure to reply results in denial
Adjudication and Follow-Up (cont.)
 Denial of reinstatement
 USCIS Officer updates SEVIS record
 PDSO and submitting DSO receive email notifications
 Written notification sent to student by mail
 Record reverts to prior status—TERMINATED or COMPLETED
 Considered to be “formal finding of a status violation”
 Triggers accrual of unlawful presence under INA 212((a)(9)(B)
 Triggers cancellation of visa under INA 222(g)
 Future nonimmigrant visa applications limited to country of
citizenship or permanent residence
Adjudication and Follow-Up (cont.)
 Student options following denial
 Depart United States
 Remain in United States in violation of status
 File Motion to Reopen/Reconsider
 Motion to Reopen is considered differently than an Appeal, which is
not allowed
 Filed using form I-290B
 Currently $585.00 - will change to $630.00 effective 11/23/2010
 Filed with service center that adjudicated initial petition
 Must be filed within 30 days of the initial denial—33 days if
notification of denial is received by mail.
 Should be filed ONLY if :
o New/additional evidence is being presented that was not
considered or available to USCIS at the time of initial decision
Questions?
Session handouts will be available
shortly on the Region VI web site.
Thank You!