Slide 1

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 Regulations, Reality and Tips Slide 2 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 Slide 3 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 students SEVIS record may be terminated following a violation of status. The same factors are often relevant in determining a students options for reinstatement. What occurred? When did it occur? How did the student fail to maintain status? Slide 4 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 Students long-term plans and those of any dependent family members Institutional Policies that affect decision to apply for reinstatement Slide 5 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 students 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 Slide 6 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 Slide 7 Statutory Eligibility (continued) Circumstances beyond the students 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 Slide 8 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 Slide 9 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. DSO may enclose letter requesting expedited processing of reinstatement request if timing of the application warrants it Slide 10 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 Slide 11 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 Slide 12 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 Students original I-94 card Updated evidence of financial support Copies of previous I-20 forms issued to the student Copy of the students 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. Slide 13 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 students 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 Slide 14 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 versions12/11/2006, 10/26/2009 and 06/12/2009are 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 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 Slide 15 Essential Elements (cont.) Where to file application I-539 forms for F-1 reinstatement are now filed at Dallas Lockbox Facility: All USPS mail:Express and courier deliveries:USCIS PO Box 660166ATTN: I-539 Dallas, TX, 752662501 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 Slide 16 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 oOnce 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 Slide 17 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 students activity Copy of the students passport that include biographical and validity information Establishes continued eligibility for lawful presence in the United States Slide 18 Essential Elements (cont.) Copy of transcript, course registration, and/or other evidence of current and previous full-time enrollment Establishes evidence of students 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 students 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 feeRequired ONLY IF student has been out of status for more than 5 months Slide 19 Status While Application is Pending Eligibility for benefits Employment Off-campus employment authorizationCPT, 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 on- campus employment while reinstatement is pending if the student is otherwise eligible Slide 20 Status While Pending (cont.) Travel Departure from the United States while application is pending will result in the applications 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 Slide 21 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 students control Effect of employment after the violation that would otherwise have been authorized had the violation not occurred Slide 22 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 Slide 23 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 Refers to form not associated with case Refers to proof of fact that seems irrelevant Contacting service centers for clarification CSC.schools@dh.gov; VSC.schools@dhs.gov CSC.schools@dh.govVSC.schools@dhs.gov 30-day response deadline Failure to reply results in denial Slide 24 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 statusTERMINATED 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 Slide 25 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 denial33 days if notification of denial is received by mail. Should be filed ONLY if : oNew/additional evidence is being presented that was not considered or available to USCIS at the time of initial decision Slide 26 Session handouts will be available shortly on the Region VI web site. Thank You! Questions?