Can I Apply for Reinstatement While Waiting for Adjusting My Status

• Introduction: Reinstatement of F1 Status
• Eligibility for Reinstatement of F1 Status
• Deprival of Reinstatement of F1 Status
• Conclusion: When to Employ for Reinstatement of F1 Status?

Introduction: Reinstatement of F1 Status

In guild to maintain F1 pupil condition, an F1 educatee must follow all of the rules and regulations associated with F1 status. An F1 pupil who violates the rules of his or her status volition exist considered to be out of condition. An F1 student who is out of status may exist eligible, depending on the blazon of condition violation and the specific ready of circumstances of the state of affairs, to apply for reinstatement of F1 status without departing the Usa. This article volition explain the rules and regulations for applying for reinstatement of F1 condition.

To acquire about applying for and maintaining F1 student status, please review our selection of manufactures about F1 visas in the educatee visas department of this website.

Eligibility for Reinstatement of F1 Status

The regulations regarding the reinstatement of F1 student status are establish in 8 C.F.R. 214.2(f)(16). In order to apply for reinstatement of F1 status, the educatee must make a asking for reinstatement on a Form I-539, Application to Extend/Change Nonimmigrant Condition (with fee), accompanied by a properly completed SEVIS Grade I-twenty [meet page three for filing requirements]. The Form I-20 must include a recommendation for reinstatement of F1 status from the pupil'due south Designated School Official (DSO). The application must explain the reasons for the violation and that the educatee will have the requisite financial support to pursue a full course of report if reinstatement is granted. F2 dependents must exist included on the awarding since their status depends on the main F1'south. The regulation states that U.s.a. Citizenship and Clearing Services (USCIS) may consider granting the asking for reinstatement if the student:

• A. Has not been out of status for more than than 5 months at the time of filing the request for reinstatement (or demonstrates that the failure to file within the 5 month flow was the consequence of exceptional circumstances and that the pupil filed the request for reinstatement as promptly as possible under these exceptional circumstances);
• B. Does not accept 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 schoolhouse which issued the Form I-twenty;
• D. Has not engaged in unauthorized employment;
• E. Is non deportable on whatever ground other than section 237(a)(i)(B) or (C)(i) of the Human action; and
• F. Establishes to the satisfaction of the Service, by a detailed showing, either that:
  1. The violation of condition 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 fail on the office of the DSO, merely do not include instances where a design of repeated violations or where a willful failure on the office of the student resulted in the need for reinstatement; or
  2. The violation relates to a reduction in the pupil'southward course load that would have been within a DSO's power to qualify, and that failure to corroborate reinstatement would effect in extreme hardship to the student.

The regulation makes it clear that reinstatement of F1 student status is not a catch-all remedy for whatsoever violation of F1 status. Students who permit their status to lapse in backlog of five months (generally), appoint in unauthorized employment, or are deportable for other reasons than the lapse of status will exist ineligible for the reinstatement of F1 status. The pupil will also be required to satisfy USCIS that he or she would be able to comply with the requirements of F1 status later on reinstatement. Furthermore, the student will be required to show that the lapse in condition was caused by "circumstances across [his or her] control" or was caused by a reduction in his or her grade load that would accept been within a DSO's power to qualify. For these reasons, reinstatement of condition is not an available remedy for every violation of F1 status.

While reinstatement is awaiting, the student must continue to written report.^ane Still, the F1 student will not be eligible for on-campus employment or whatsoever 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 awarding for reinstatement of F1 condition and the reinstatement of F1 condition volition not count toward eligibility for curricular practical preparation or optional practical preparation (OPT), although if reinstatement is granted, time spent on F1 condition prior to the violation of F1 status will be counted.

If USCIS decides to grant reinstatement of F1 condition, it will endorse the student's re-create of the Form I-twenty to bespeak that the pupil has been reinstated to F1 status, and forrard this information to the student's school. The pupil's F1 visa will remain valid and then long equally information technology has non expired.

Deprival of Reinstatement of F1 Status

The conclusion to grant or deny reinstatement is fully within the discretion of USCIS. There are no grounds for appeal. The Board of Clearing Appeals (BIA) held in the Thing of Yazdani, 17 I&Due north Dec. 626 (BIA 1981) [PDF version] that USCIS'southward conclusion 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 exist invalidated in accordance with department 222(g) of the Immigration and Nationality Act (INA). Accordingly, the pupil is required to immediately depart the United States.

The Department of State (DOS) has stated that in that location is no bar for a pupil who was denied reinstatement of F1 status to subsequently apply for and obtain a new F1 visa from abroad. Yet, it notes that in such a example, consular officers should review the circumstances surrounding the pupil's loss of status, including any condition violations, in determining whether "the applicant is a bona fide educatee at the time of the application."ⁱⁱ

Conclusion: When to Apply for Reinstatement of F1 Status?

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

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

The best pick will depend on the facts of the state of affairs. If a student is granted reinstatement of status, he or she will be able to have the time spent in condition before the violation of F1 status and subsequently reinstatement counted toward curricular practical grooming or OPT. Still, if reinstatement is denied, the pupil 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, exist treated as a new educatee and will not exist able to count time spent in the starting time stint on F1 status toward benefits such as eligibility for curricular applied training or OPT.

Because a student cannot begin a new form of written report while out of status, he or she can only take F1 status reinstated earlier the expiration of the course of report listed on the Form I-20, or within the 60-24-hour interval grace menses later on the course of study is completed. Bearing this in mind, it is important to note that processing times vary, and it may accept several months for USCIS to render a decision.

It is important to remember that remaining in the United States after reinstatement is denied will atomic number 82 to the accrual of unlawful presence for the F1 pupil and whatsoever derivative F2s. The Seventh Circuit held in Immature 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 business relationship of his married woman being denied reinstatement to F1 condition) was subsequently ineligible for adjustment of status.

A educatee who lapses in status should offset consult with his or her DSO for an cess of the state of affairs and to determine whether the DSO is willing to endorse an application for reinstatement of F1 status. If and then, the educatee is also well-advised to consult with an experienced immigration chaser for an opinion on whether seeking reinstatement of F1 condition is the best immigration option given the unique facts of the situation.

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

____________________

1. Cablevision, DOS, 05-Land-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.

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Source: http://myattorneyusa.com/reinstatement-of-f1-status

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