by Sherrod Seward, Partner, Queen City Immigration Law
The F-1 status is a non-immigrant category that permits foreign students to maintain legal status while studying in the United States in a full-time academic program. The F-1 is appropriate as early as high school, but is more commonly used for the post-secondary education. At either level, the high school or post-secondary school/institution must be a participant in the Student Exchange Visitor Program (“SEVP”). A list of participating organizations can be found at https://www.ice.gov/sevis. A foreign student who successfully applies for an F-1 visa may travel to the U.S. with their spouse and minor children, who can obtain an F-2 visa.
F-1 visas are processed at U.S. embassies and consulates outside the United States and begin with the chosen institution issuing a form I-20. Once the student receives the I-20 from the chosen institution, they must take the I-20 along with other necessary supporting documents to the appropriate consular post to do an interview. There will be a burden on the petitioner to prove that they have the ability to support themselves and plan to leave the Unites States after graduating. Large institutions, such as large universities, will have an office designed to assist and manage the F-1 process. The university will assign the petitioner a DSO to service the F-1 process and an immigration attorney is not necessary.
There are circumstances where a foreign student can lose his or her F-1 status for reasons such as extended absence, failure to maintain full-time study, or even administrative issues. For example, the F-1 status can be terminated if the institution determines that the student does not have necessary pre-requisite testing or coursework completed upon arrival. The effect of the F-1 being terminated is that the student must leave the United States in 15 days or will be considered to be present in the United States unlawfully.
If the termination of F-1 status was due to an absence, then the student can use the same I-20 form they originally used to apply for the F-1 visa in their home country, as long as the petitioner returns to the institution within five months. If the F-1 status was terminated for another reason, then the student must pursue reinstatement which involves a new I-20 form. In addition to the I-20, a student seeking reinstatement must file an I-539 form and a letter from the petitioner’s DSO that states the following:
The student has not been out of status for more than five months,
The student is not a repeat and/or willful violator of conditions necessary to maintain the F-1 status and the institution's rules,
The student is currently or intends to pursue full-time study,
The student has not participated in unauthorized employment,
The student is not removable on any ground other than being out of status, and
The student is in violation because of an occurrence outside of their control.
Showing that the student is in violation because of an occurrence outside of their control can be a challenge. Appropriate explanations include serious injury/illness, natural disasters, or fault of the DSO or institution. An immigration attorney can be very helpful in assisting the student to navigate communication with the DSO and to file the I-20 and I-539 for reinstatement. Do not hesitate to contact Queen City Immigration Law if you would like a discussion to evaluate an F-1 reinstatement.
Queen City Immigration Law - 704-500-2075 - firstname.lastname@example.org - www.qcilaw.com