Washington, D.C. We had published a number of insightful blog posts on this topic, F-1 Student visa Revocation and SEVIS Termination and their legal implications, Requirements for Reinstatement to Student Status, below you will find general answers to some frequestly asked questions.
1. What is the Grace Period after SEVIS Termination to exit the country or seek resolution of the government's action?
No grace period. In accordance with the immigration law, if an F-1 student fails to maintain a full course of study without the approval of the DSO or otherwise fails to maintain status is not eligible for an additional period for departure, therefore, a SEVIS Terminiation by U.S. Department of Homeland Security (DHS) alleging failure to maintain status will also have no grace period. (See 8 CFR 214.2(f)(5)(iv)).
Also after failing to maintain status, the student is no longer authorized for on-campus employment or curricular practical training.
Hence, one should either exit the U.S. soon or seek a legal recourse to regularize the status as early as possible without a delay. There are a number of legal recourse which may be available to affected students.
2. Can the government start enforcement action such as removal from the U.S.?
Once someone falls out of status, the government will have authority to start enforcement action such as removal from the U.S. Under immigration laws under Title 8 of U.S. Code. To effectuate the removal, the U.S. government will first have to issue and serve (a) a charging document, a Notice to Appear (NTA), Form I-862; and (b) file with the immigration court to start removal proceedings in accorance with the immigration law against person being placed in a removal proceedings.
The Immigration and Customs Enforcement (ICE) also has a general authority to detain aliens who are subject to removal or removal proceedings, however, ICE can release the person after a bond payment or promise to appear before ICE office for status check.
2. Am I eligible to apply for reinstatement of F-1 status?
In accordance with immigration rule, USCIS may consider reinstating a student who makes a request for reinstatement on Form I-539, Application to Extend/Change Nonimmigrant Status, accompanied by a properly completed Form I-20 or successor form indicating the DSO's recommendation for reinstatement. USCIS may consider granting the request.
Reinstatement has specific requirements for the eligibility and also discretionary, therefore, sometime it may be hard to obtain a reinstatement and may also require a help from experienced immigration attorney.
Learn more about reinstatement https://www.adhikarilaw.com/news-and-alerts/legal-alerts/requirements-for-reinstatement-to-student-status/.
2. Am I eligible to apply for reinstatement of F-1 status if I am already on OPT or STEM OPT?
An application of reinstatement of F-1 status does not preserve the OPT or STEM OPT. However, one could still seek F-1 reinstatement he or she joins a "new degree program", in other words, a new program of study will be basis for F-1 reintstement.
Therefore, if you do not plan to start a new degree program then reinstatement option will not applicable for you.
Learn more about reinstatement
3. Is reinstatement still possible if I have legal trouble such as citations for a crime, arrests, charges, dropped charges, acquital or criminal convictions?
Reinstatement has specific requirements for the eligibility and it also discretionary, therefore, if one had a legal issue such as such as citations for a crime, arrests, charges, dropped charges, acquital or criminal convictions, then it may be unhill task to convince the government for a reinstatement. However, if one is not deportable on any ground and establishes to the satisfaction of USCIS that the violation of status resulted from circumstances beyond the student's control such as:
- serious injury or illness.
- closure of the institution,
- a natural disaster, or
- inadvertence, oversight, or
- neglect on the part of the DSO
then reinstatement could still be a possiblity.
4. Instead of reinstatement, will it be wise to file a federal lawsuit against the government's action?
Depending on your circumstances, filing a federal lawsuit might offer a better chance to regularize your immigration status than the reinstatement application. Even after filing the federal lawsuit, one could still seek a reinstatement at a later time within FIVE (5) months from the date of SEVIS termination or visa termination whichever is later.
5. After SEVIS Termiation, do I accrue unlawful presence?
The governance policy is unclear about this, there were prior policy that the government will not consider one to accrue unlawful presence for those in Duration of Status (D/S) after one falls out of status. For unlawful presence to accrue either:
- if USCIS finds a nonimmigrant status violation while adjudicating a request for an immigration benefit, unlawful presence will begin to accrue on the day after the request is denied.
or
- 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's order. It must be emphasized that the accrual of unlawful presence neither begins on the date that a status violation occurs, nor on the day on which removal proceedings are initiated
However, current government's policy is rather unclear, therefore, it can find that the SEVIS termination will begin the accrual of unlawful presence period for students. This was also the policy the administration sought to maintain in its Policy Memo of May 10, 2018 which was later struck down by the U.S. District Court in North Carolina.
Therefore, more cautious approach will be treat the accrual of unlawful presence from the day SEVIS Terminated rather than USCIS' denial or Immigration Judge's finding.
5. Does application for reinstatement pause or stop the period of unlawful presence?
Generally no. However, a positive decision to reinstate the status by USCIS will only allow you to regain your F-1 status and the lawful presence in the U.S.
7. Similary, does filing a federal lawsuit pause or stop the period of unlawful presence?
Generally no as well. However, if the judge orders a Temporary Restraining Order (TRO) or the Preliminary Injuction then the goverment will asked not to start the deporation. However, the SEVIS record may not be re-activated until final decision under the judge decides otherwise.
Once the judge issues a Final Order on the case then that Order will determinate the ultimate fate about the F-1 status a positive one or negative, until then the judge can only order a TRO or PI to "pause" the government's action. Therefore, the filing of the case does not necessarily re-active the SEVIS or OPT/STEM unless the judge orders otherwise.
3. Is there likelihood of success of a federal lawsuit for me?
It really depends on specific fact of your case, your situation which led government to terminate your SEVIS, how well the attorney presents your case, and ultimately if the judge will be convinced to issue TRO, PI or ultimately the final order in your favor.
However the interim reliefs of Temporary Restraining Order or the Preliminary Injuction could provide a short-term relief while the case get adjudicated by the federal judge.
8. Does Adhikari Law PLLC helps with Change of Status, reinstatement of F-1/F-2, J-1/J-2, M-1/M-2 status or federal lawsuits?
Our firm does help with Change of Status, reinstatement of F/J/M status and other immigration reliefs. If you are seeking legal help from us, please complete the Intake Form 📜at https://forms.gle/AhFwCyjxsGrVQ26k8 for us to contact you or schedule a consultation.
About the federal lawsuits, we will have to assess if your specific case might be well suited for a federal litigation as a group case or an individual case, and if our firm can handle it solely, co-counselling with other attorneys or make a referral to attorneys in our network.
Note: This is a blog post by Adhikari Law PLLC as an informational purpouse only and should NOT be construed as a legal advice.
If you want to learn more about this and other immigration law topics or want to seek a legal help or services from us do complete the initial Intake Form. You could also email us at info@adhikarilaw.com or call us at (+1) 888 820 4430 where you can leave a voicemail too.