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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Validity of Student Visas Subsequent to a Break in Studies


UNCLASSIFIED   STATE   00232385
R 281944Z DEC 05
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS COLLECTIVE

SUBJECT: VALIDITY OF STUDENT VISAS SUBSEQUENT TO A BREAK IN STUDIES

1.  Summary:  This message is to clarify the issue
of whether a F-1 or M-1 visa remains valid after a
student has a break in studies longer than five
months.  There are two circumstances where a
student's visa is automatically invalidated
after such a lengthy break.
Students who are not studying but remain in
the United States

-------------------------------------------
2.  An individual admitted in F-1 or M-1 status
to study in the United States who is transferring
between schools or programs is no longer regarded
to be in student status if classes are not resumed
within five months of the date of transferring out
of the previous school or within five months of the
date of program completion, whichever is applicable.
No formal finding of loss of status needs to be made.
In order for that student to restore lawful status,
he or she must apply for reinstatement of student
status with the Bureau of Citizenship and Immigration
Services (USCIS).  (A student may pursue studies
while reinstatement is pending.  See 8 CFR 214.2(f)
(16)(i)(C) and 8 CFR 214.2(m)(16)(i)(C).)

3.  USCIS has the option to approve or deny
reinstatement of student status.  If student status
is restored, then the student's F-1 or M-1 visa
remains valid (assuming that the visa has not expired).
However, if the student is denied reinstatement, then
the student is held to have lost F-1/M-1 status at
that point.  Any valid student visa that was in the
student's possession would be invalidated per INA
222(g).  Because the student is considered to be
out-of-status from the time that reinstatement is
denied, the student must immediately depart the
United States.

4.  There is no bar for a student who was denied
reinstatement from applying for and receiving another
student visa, but consular officers should review the
circumstances surrounding why the student ceased
full-time study and lost status in the first place,
including any actual status violation, in determining
whether the applicant is a bona fide student at
the time of application.

Students who depart the United States while in valid student status
-------------------------------------------------------------------
5.  Students who are enrolled in schools in the
United States will often take a break from studies
and return home for a semester or more. When a
student has been out of the country for more than
five months, the student's F-1 or M-1 visa would
be considered to be invalid under 22 CFR 41.122(h)(3).

6.  Under DHS regulations (8 CFR 214.2(f) (4)),
an F-1 student returning to the United States
from a temporary absence of five months or less
may be readmitted for study upon presentation of
a valid I-20.  After an absence of more than five
months, an alien is no longer admissible as a
continuing student.  Under 22 CFR 41.122(h)(3),
an immigration officer is authorized to
physically cancel a nonimmigrant visa of an alien
who appears to be inadmissible.  Because a student
who has been out longer than five months can be
found inadmissible, that student's F-1 or M-1 visa
is subject to cancellation and should not be used,
even though it remains valid on its face.

A student who wishes to resume study in the
United States must obtain a new visa.  In order
to apply, the student should either obtain a
new I-20 from the school or verify that his/her
previous I-20 remains valid and SEVIS record is
in active status before applying for a new
F-1 or M-1 visa.

7.  Students who have the approval of their schools
to take an extended break from study must have their
SEVIS record terminated for Authorized Withdrawal.
When the student is ready to resume study, the school
will issue the student a new initial Form I-20 with
a new SEVIS number. These students must pay the
SEVIS I-901 fee.

8.  Some students depart the United States for
extended periods of time for activities related to
their course of study, such as field research.
Schools are expected to maintain those students
in an active SEVIS status.  Since these students
continue to maintain their student status while
overseas, their F-1 visas are not considered to
be invalid after an absence of more than five
months.

9.  Travel.state.gov will be updated to reflect the
above guidance.  Posts may include a link to
http://travel.state.gov/visa/temp/types/types_1268.html
on their web sites for the latest guidance.

RICE

 



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