Cancellation of Student Visa and Visa Reapplication from Abroad28 Jan 2013
There are situations in which an F-1, J-1, or M-1 visa foil (commonly referred to as a visa stamp) issued to a foreign national student may be cancelled automatically due to a break in the student’s studies. There are two such conditions under which such a break in studies causes cancellation of the student visa. One occurs when the student remains in the United States without attending school for certain extended periods. The other results when a student takes time away from school and spends several months abroad.
Transfers Enjoy Five-Month Window / Reinstatement Application
Students (F-1 or M-1) who are in the process of transferring between schools are regarded as being out of status if they do not resume classes within five months of the transfer. The same five-month window applies to students who are transferring between programs after completion of a course of study. In these situations the visa stamp becomes invalid even if there is no formal government finding that the student is out of status.
If there has been a five-month lapse in studies the student is eligible to apply for reinstatement. Of course, eligibility to request reinstatement does not mean that the request will be granted in all cases. If reinstatement is granted, the student is back in status and the lapse is forgiven. In that event, the visa becomes valid again until its expiration date (or until a new status lapse). If the reinstatement is denied, however, the student’s status is lost, and the visa remains invalid. The student is regarded as out of status and accruing unlawful presence from the date of the denial of the reinstatement request. Thus, in most instances, this requires that the student depart the United States and apply for a new visa from abroad.
Reapplication of the F-1, J-1, or M-1 Visa Abroad
A student whose visa is automatically cancelled due to failure to attend school and/or being denied reinstatement can reapply for a visa at the U.S. consulate in her/his home country. If the student departs in a timely manner, s/he would not typically be barred from reapplying for a new student visa. The consulate must review the situation, however, to determine if the applicant is really a bona fide student and eligible for a new student visa. Consular officers are instructed to review the reasons that a student was not attending classes as required. Clearly, the chance of success depends upon the student’s ability to demonstrate a valid reason for the failure to comply with the terms of his/her status.
Students who Travel for Extended Periods – Beyond 5 Months
Another situation in which a visa is automatically cancelled is when a student is not enrolled and spends more than five months abroad. Under these circumstances, the visa is not lawful because student visas are only valid for continuing students. After five months, the student is no longer considered a continuing student. Therefore, even if the visa stamp in the passport has not expired, it is invalid and, if presented at the port of entry, the officer can cancel it and deny admission. (If the break is less than five months, the student can return on the unexpired F-1 or M-1 visa with a valid I-20 form endorsed by the school.)
Reapplication of the F-1, J-1, or M-1 Visa from Abroad
If a student wants to return to school in the United States after a break of more than five months, it is necessary to reapply for a visa at the U.S. consulate. The student needs a valid I-20 from the school and must verify with the school that the SEVIS record is in active status.
Exception for Visa Invalidation: If Travel is for School-Related Activities
Students who are outside the U.S. for extended periods for school-related activities are not subject to the invalidation of their visas outlined above. If engaged in approved, school-related activities such as research, or an approved study abroad program, the school should maintain the student’s SEVIS record and consider the student to be in compliance with the terms of his/her student status.
Advance Planning Recommended
If a student needs to take an extended break, approval should be obtained from the school / university. If appropriate, the SEVIS record will be terminated as an authorized withdrawal (preferable to appearing simply not to have complied with the terms of status). The student will receive a new I-20 and SEVIS registration when s/he is ready to resume studies. Of course, the student cannot remain in the United States without status simply because the withdrawal was authorized. It would be necessary either to change to some other lawful status in the U.S. to remain legally or else to depart the U.S. and seek readmission as a student, if that is the goal.
Students need to be mindful of status and visa issues. As always, foreign nationals should consult with an experienced attorney before taking any action that may impact their immigration status and future options.
Originally Posted 27.Jan.2006, this NewsBrief has been updated for MurthyDotCom readers.
Copyright © 2013, MURTHY LAW FIRM. All Rights Reserved