Student Corner : Reinstatement of F-1 Status
Posted May 29, 1999
As a courtesy to its readers who are students, The Law Office of Sheela Murthy is pleased to share certain information for the benefit of the student population, who are young and often vulnerable, in a new culture and system.
From time to time, an F-1 student falls out of status, often unintentionally. A foreign national student studying in the U.S. can fall out of status either as a result of an action on their part, such as working without authorization (some students believe that they have the same rights to work as a U.S. citizen classmate), or it can be for a reason out of their control, such as when they transfer schools and the school official does not carry out the transfer procedures correctly or if they fall ill and cannot attend classes with the required minimum credits to maintain F-1 status. Other reasons include dropping out of school entirely, or not completing the course work in time and being unable to meet the requirements for an F-1 extension.
Please note that if a student needs to reduce his or her course load for any reason, such as a serious illness, the matter should be discussed with the Foreign Student Advisor (also known as the Designated School Official or DSO). There may be circumstances under which a lighter course load can be authorized, with the assistance of the DSO. If a student has fallen out of status but wishes to resume studies, the student may be able to apply for reinstatement.
The basic requirements for a reinstatement, which is generally processed with the assistance of the DSO and involves an application to INS, are as follows:
(a) the out of status situation was because of circumstances that are beyond the student's control, or the student demonstrates that s/he would suffer extreme hardship if not reinstated;
(b) the student is pursuing, or intends to pursue, full time study;
(c) the student has not engaged in unauthorized off-campus employment; and
(d) none of the grounds for "removability" (formerly known as deportability) apply to the student, other than the overstay or violation of status itself.
INS makes a case-by-case determination on the request for reinstatement, based upon a review of all the circumstances. It is important to document the case well to prove that all the requirements have been satisfied.
Depending upon the particular situation, students who have fallen out of status but who are not interested in going back to school full time may have other options, such as having an employer petition for an H1B, temporary work status, and then traveling abroad to apply for the H1B visa. (A person who can qualify for an H1B in this situation would most likely already have another degree or have been pursuing an advanced degree in the U.S.)
The Law Office of Sheela Murthy recommends that it is advisable to consult an immigration law attorney to assist with the paperwork, if the DSO is unable or unwilling to guide the foreign student in the reinstatement process, since the consequences can often be harsh for the student if the reinstatement is denied by the INS.
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