• Reinstatement of F1 status
  • November 16, 2016 | Author: Alexander Joseph Segal
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • What is Reinstatement of F1 Status?

    Individuals on F1 student status are required to follow all of the rules and regulations regarding F1 status in order to maintain such status. If an F1 student commits a status violation, he or she will be considered out of status. Normally, a person who is out of status and not otherwise authorized to be present in the United States would have to depart the United States and apply for admission from abroad. However, in certain circumstances, an F1 student whose status lapses may be eligible for what is called “reinstatement of F1 status.” If an individual has his or her F1 status reinstated, the individual may reclaim his or her F1 status without having to depart the United States.

    Eligibility for Filing for Reinstatement of F1 Status

    In order to be eligible for reinstatement, the individual must not have been out of status for more than five months prior to applying. However, an individual may seek reinstatement outside of the five month window if he or she establishes that the failure to file a timely application for reinstatement was the result of exceptional circumstances, and that the individual filed for reinstatement as promptly as possible under the exceptional circumstances.

    An individual seeking reinstatement must not have a record of repeated or willful violations of United States Citizenship and Immigration Services (USCIS) regulations. The individual must be currently pursuing, or intending to pursue, a full course of study in the immediate future at the school that issued the student’s Form I-20, Certificate of Eligibility for Nonimmigrant Student Status. The individual must not have engaged in unauthorized employment, and the student must not be deportable on any ground other than section 237(a)(1)(B) or (C)(i) of the Immigration and Nationality Act (INA) (relating to those present in violation of the law and those who violated their nonimmigrant status).

    If the individual meets the basic eligibility requirements for seeking reinstatement of F1 status, the individual will still be required to establish that he or she merits reinstatement. In order to do so, the individual may establish eligibility through one of two means.

    The first method requires that the individual establish that the status violation resulted from circumstances beyond his or her control. The regulations offer examples such as serious injury or illness, closure of the institution, a natural disaster, or inadvertence, oversight, or neglect on the part of the individual’s Designated School Official (DSO). The student will not be entitled to reinstatement if there is a pattern of willful status violations or if willful failure on the part of the student resulted in the status violation.

    The second method through which an individual may endeavor to establish eligibility is by establishing that his or her status violation relates to a reduction in course load that would have been within the DSO’s power to authorize. Furthermore, the individual must establish that the denial of reinstatement would result in extreme hardship.

    As we will discuss in the next section, the student seeking reinstatement of F1 status must have the approval of his or her DSO.

    Filing Process, Pending Applications, and Denial of Reinstatement

    The application for reinstatement of F1 status is filed on the Form I-539, Application to Extend/Change Nonimmigrant Status. The Form I-539 must be accompanied by the requisite filing fee and by a completed Form I-20. The Form I-20 must include a recommendation by the individual’s DSO for reinstatement of F1 status. The application must establish that the student is eligible for reinstatement and explain the causes of the status violation necessitating reinstatement. Derivative F2 dependents may be included in the reinstatement application.

    While an application for reinstatement of F1 status is pending, the student may continue to study. However, the F1 student will be ineligible to engage in on-campus employment or to otherwise avail him or herself to benefits of F1 status until reinstatement is granted. Regulations also prevent F1 students with pending reinstatement applications from transferring schools. The time accrued from the date of the application for reinstatement to the date that reinstatement is granted will not count toward eligibility for either curricular practical training (CPT) or optional practical training (OPT). If reinstatement is granted, the time that the F1 student spent in F1 status prior to the status violation will count toward eligibility for CPT and OPT.

    If an application for reinstatement of F1 status is denied, the individual will be considered to have lost F1 status. Accordingly, the student’s nonimmigrant visa would be invalidated under section 222(g) of the INA. The student would be required to depart the United States immediately. However, there is no admissibility bar for an individual who was denied reinstatement of F1 status. This means the individual would be eligible to apply for F1 status from abroad. It is important to note, however, that the Department of State (DOS) would likely look closely at the circumstances of the individual’s previous loss of F1 status in determining whether he or she should be granted a new F1 visa.

    When is Applying for Reinstatement of F1 Status the Best Option?

    Applying for reinstatement of F1 status is not the best option in every case where a violation of F1 student status occurs. The first reason for this is that reinstatement of F1 status is only available for certain status violations. If the status violation did not occur for a reason that we discussed in point two of this article, or if the individual is ineligible for reinstatement for a different reason, the individual’s only recourse would be to depart the United States and reapply for F1 status from abroad. Furthermore, students with pending applications for reinstatement of F1 status may not commence a new course of study. This means that once the individual’s course of study expires, he or she will have to depart within the 60-day grace period even if there is a pending application for reinstatement of F1 status. Because an application for reinstatement of F1 status may take several months to process, it is important to consider how much time the student has left on his or her current F1 status when considering this course of action.

    Because the individual’s DSO must be willing to endorse an application for reinstatement of F1 status, the student should first discuss the situation with his or her DSO. Additionally, the student is well-advised to consult with an experienced immigration attorney both for determining whether he or she should pursue reinstatement of F1 status and for assistance in applying for reinstatement of it is determined that applying for reinstatement of F1 status is in the individual’s best interest.