UNDER INA 101(a)(15)(F)(i), an alien student may temporarily enter the US to pursue a course of study at an established and approved college, university, seminary, conservatory, academic high school, elementary school, other academic institution, or language training program. 22 CFR 41.61(b)(1) authorizes the issuance of an F-1 nonimmigrant visa to an alien student if the alien: (1) has been accepted at an approved school; (2) has sufficient funds to cover expenses in the US; (3) has sufficient knowledge of the English language to undertake the chosen course of study, unless the alien is coming to participate in an English language training program; and (4) intends to leave the US after termination of student status.
The proof of acceptance at an approved school is the Form I-20, which can only be issued by a school that is certified by the Student and Exchange Visitor Program (SEVP). The SEVP manages the Student and Exchange Visitor Information System (SEVIS), which is the system that monitors schools, programs, students, exchange visitors and their dependents during their involvement in the US education system.
F-1 students must comply with various requirements in order to maintain their status. An F-1 student may fall out of status if he: (1) does not pursue a full course of study, which means at least 12 semester hours of instruction in an academic term at the undergraduate level at a college or university; (2) works without authorization; (3) transfers schools without permission; or (4) fails to complete a full course of study in time.
When an F-1 student falls out of status, he may request USCIS to reinstate his F-1 status. Under 8 CFR 214.2(f)(16), USCIS may grant a request for reinstatement if the student: (1) has not been out of status for more than 5 months at the time of filing of the request for reinstatement; (2) does not have a record of repeated or willful violations of immigration regulations; (3) 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; (4) has not engaged in unauthorized employment; (5) is not deportable on any ground other than INA 237(a)(1)(B) for being present in the US in violation of law or INA 237(a)(1)(C)(i) for failing to maintain nonimmigrant status; and (6) establishes to the satisfaction of USCIS either that: (a) the violation of status resulted from circumstances beyond the student’s control; or (b) the violation relates to a reduction in the student’s course load that would have been within a designated school official’s (DSO) power to authorize and that failure to approve reinstatement would result in extreme hardship to the student.
Circumstances beyond the student’s control might include: (a) serious injury or illness; (b) closure of the institution; (c) a natural disaster; or (d) inadvertence, oversight, or neglect on the part of the DSO. However, instances where a pattern of repeated violations or where a willful failure on the part of the student resulted in the need for reinstatement are not circumstances beyond the student’s control.
If the student files the request for reinstatement when he has been out of status for more than 5 months, he must show that his 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.
For example, on January 15, 2014, X lost his F-1 status after he failed to attend all of his classes for one month because he was confined in a hospital due to a serious illness. As soon as he recovered, X explained to the school what happened and expressed his desire to continue his studies. The school issued a new I-20 and recommended the reinstatement of his student status. On March 15, 2014, X filed his request for reinstatement with USCIS. If X has no record of repeated violations and has not worked without authorization, USCIS will likely grant reinstatement.
If X filed his request for reinstatement on July 15, 2014, he would have to show exceptional circumstances for his failure to file within 5 months. Maybe he could show that he has been in the hospital and in a rehabilitation facility during this period for his continuing treatment and recovery.
Let’s have another example. Y is enrolled in an English language training program. After he completes this program, Y plans to transfer to a university to pursue his bachelor’s degree but a satisfactory TOEFL (Test of English as a Foreign Language) score is required for admission. So Y told the DSO of his current school that he wanted to skip classes for 2 weeks to review for his TOEFL exams. The DSO agreed to this but when Y came back from his 2-week absence, he found out that he was already out of status. He filed a request for reinstatement based on the DSO’s oversight. USCIS might deem that Y’s situation was the result of circumstances beyond his control and approve the reinstatement.
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Charles Medina practices immigration law. Visit his website at www.medinalawgroup.net for more details. This article provides general information only and does not provide legal advice on any specific matter or predict the outcome of any legal matter. It does not invite or create an attorney-client relationship.
