I came to the United States in F1 status, but I had to take a leave of absence from school. Do I have to return to my home country?

Question:

In 2015, I came to the United States on an F1 visa to study at a university in New York. Unfortunately, due to a financial upheaval in my home country, my scholarship organization was unable to keep up with my tuition payments. This led me to take a leave of absence. I have remained in the United States expecting to get back into school, and I have applied to other schools for a postgraduate degree. I gained acceptance into one school. I have not worked or participated in any activities that could violate my status.

I initially requested to apply for reinstatement, but the International Students Office (ISO) of the new school informed me that reinstatement applications are experiencing long processing times, and many are denied. Also, since I had been out of school for over six months, the ISO felt the chances of reinstatement were even slimmer. According to the ISO, it was more advisable to depart the United States and return with a new visa.

So, right now, it seems there are two options: (1) apply for reinstatement, or (2) depart and re-enter the United States at a later date. Regarding my admission to a new school, I have been offered a school scholarship for the duration of my studies. I have also secured a United States based sponsor who is willing to help me pay for whatever tuition is not covered by my scholarship.

I do realize that there is no clear question here, and a lot of information is available online; however, if you would be willing to give some advice, I would be most grateful.

Answer:

Thank you for your question. In order to further assist you, I encourage you call my office directly. I have some questions for you before we discuss case strategy. In the meantime, below I provided some information that I believe you may find helpful.

When is comes to issues associated with being out of status, my main concern is the accrual of unlawful presence. Inadmissibility to the United States for unlawful presence is outlined in section 212(a)(9)(B) and (C) of the Immigration and Nationality Act (INA). A foreign national is inadmissible to the United States for a period of three (3) years if he or she has been unlawfully present in the United States for more than 180 days and less than one year. A foreign national is inadmissible to the United States for a period of ten (10) years if he or she has been unlawfully present in the United States for one year or more. As an example, a foreign national accumulates unlawful presence if he or she remains in the United States after the expiration of an authorized period of stay.

Duration of Status (D/S)

I assume that you were admitted to the United States in Duration of Status (D/S). Generally, students are admitted for D/S (completion of program) plus 60 days. The 60 days can be used to prepare for a departure, change in education levels, or transfer to another school.

Out-of-Status

A student who is employed without authorization, pursuing less than a  full course of study, transfers schools without permission, or fails to complete a full course of study in time and is ineligible for a program extension, is out of status and subject to removal.

Overstays

F-1 visas are not subject to INA § 222(g) unless a U.S. Citizenship and Immigration Services (USCIS) officer or Immigration Judge make a formal determination that a status violation has occurred. After USCIS or an Immigration Judge make a determination, the F-1 can no longer re-enter with the same SEVIS I-20. Rather the student must return home and obtain a new visa.

Unlawful Presence

If USCIS finds a nonimmigrant status violation (for those admitted in D/S) while adjudicating a request for an immigration benefit, unlawful presence will begin to accrue on the day after the request is denied. In addition, if an Immigration Judge makes a determination of nonimmigrant status violation in exclusion, deportation, or removal proceedings, unlawful presence begins to accrue the day after the Immigration Judge issues an order. It must be emphasized that the accrual of unlawful presence neither begins on the date that the status violations occurred, nor on the day on which removal proceedings are initiated.

Reinstatement

Students may be reinstated by filing a Form I-539, accompanied by a properly completed SEVIS I-20 indicating the Designated School Official’s (DSO) recommendation for reinstatement and proof that the student:

  • Has not been out of status for more than 5 months or there were exceptional circumstances and the request was filed as promptly as possible;
  • Is not a repeat or willful immigration violator;
  • Is currently pursuing or intends to pursue a full course of study;
  • Has not engaged in unauthorized employment;
  • Is not deportable on any ground other than being out of status; and
  • Can establish either that the violation resulted from circumstances beyond the student’s control such as a serious injury or illness, closure of institution, natural disaster, oversight or neglect by the DSO or the violation relates to reduction in the student’s course level that the DSO could have authorized and failure to reinstate will result in extreme hardship to the student.

At your earliest convenience, please contact my office to discuss your case in detail. You may reach us by phone at (716) 565-6270 or by email at nmurchie@murchielaw.com.