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Practice Tip Concerning I-539 Applications To Reinstate F-1 Status Or To Change Status To F-1 By Minors

by John Kang

I thought I would offer this practice tip through your daily news to immigration law practitioners, especially those in California, regarding applications to reinstate F-1 status or change of status to F-1 by minors.

Recently, I have noticed a trend going on in the California Service Center (CSC) concerning applications to reinstate F-1 status or change status to F-1 by minors whose F-1 status has lapsed or who are in another status. The trend is that CSC adjudications officers have been sending out requests for evidence (RFEs) requesting, among other things, proof of guardianship for the minors. Many of these minors are in the U.S. staying with their uncles, aunts or other relatives while studying in private schools. Faced with this kind of requests, I have learned through some of my clients and friends, their former immigration attorneys have obtained one of two documents in response to the RFEs for evidence of guardianship:  (1) a Caregiver’s Authorization Affidavit under California Family Code Section 6550 et Seq., which is an affidavit signed by the minor’s parents, if they are in the U.S., authorizing the caregiver to enroll the minor to school and to consent to school-related medical care; (2) a notarized document from the minor’ home country indicating that the minor’s parents have authorized the U.S. relative to act as guardian of the minor. To my knowledge, attorneys who submitted one of these two documents have not been successful in their responses to the RFEs because many of the subject applications have been denied by CSC adjudications officers and some of the denials have resulted in administrative appeals being filed.
 
Although it appears that neither the INA nor Title 8 C.F.R. specifically requires that applications submitted by or for minors be accompanied with evidence of guardianship for the minors, rather than fight the denials by filing administrative appeals, I have discovered a way that has successfully met the requirements of the RFEs requiring proof of guardianship by way of obtaining an Order Appointing Temporary Guardian from the Superior Court of the State of California. The procedure involves the U.S. relative filing a Petition for Appointment of Guardian of Minor. After the petition is filed or concurrent with the filing of the petition, the intending guardian files an Ex Parte Application for Temporary Guardian. If the ex parte application is made before 10:00 a.m., an Order Appointing Temporary Guardian can be issued by a judge by 3:30 p.m. the same day if the application meets the legal requirements for the issuance of an Order Appointing Temporary Guardian. Thus, beating the 30-day deadline for responding to an RFE should not be a problem. CSC adjudications officers have accepted the Order Appointing Temporary Guardian as satisfactory evidence in response to their RFEs for proof of guardianship of the minor-applicants and they have, therefore, approved the applications supported with such temporary guardianship orders, usually about one month after the responses are received. After the applications are approved, it usually will take several more months for the court to complete the guardianship appointment process which involves the Family Court Services conducting an investigation of the temporary guardian and preparing a report for the court to rely on in its assessment on whether to appoint the temporary guardian as permanent guardian.
 
Although each state has its own laws concerning the appointment of guardians for minors, it is reasonable to assume that states other than California must have procedures permitting ex parte applications for the appointment of temporary guardians in the event of an emergency. The emergency in this context would be that the USCIS has requested evidence of guardianship for the minor by a certain deadline as stated in the RFE in connection with the minor’s application to reinstate his or her F-1 status or to change to F-1 status. It will be well worth the efforts and time for attorneys practicing in other states to look into the possibility of obtaining an order appointing temporary guardian to successfully respond to the RFEs requiring proof of guardianship for the minor-applicant. If it is legally possible, you will be able to earn a few thousand dollars for obtaining the guardianship knowing that your response to the RFE armed with an order appointing temporary guardian for the minor will have a better chance of success than filing an administrative appeal after the application is denied.


About The Author

John J. Kang has been practicing immigration law in San Diego, California with his own law office for 10 years. Information about his practice can be found at www.jxkang.com.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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