Citations for ILW.COM's Seminar
Students: F, J, and M
Session 2 held on September 10, 2009
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From Steve Springer
I. Introduction to F, J, and M Classifications
A. Overview of F, J, and M student classifications
1. F-1 students
In short, academic students. 101(a)(15)(F)(i) defines as "an alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study . . . at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program in the United States . . .
2. M-1 students
In short, vocational/non-academic students. INA 101(a)(15)(M)(i) defines as "an alien having a residence in a foreign country which he has no intention of abandoning who seeks to enter the United States temporarily and solely for the purpose of pursuing a full course of study at an established vocational or other recognized nonacademic institution (other than in a language training program) in the United States . . ." "Other nonacademic institutions" might include culinary school, technical school, etc. Also, many community colleges offering vo-tech tracks use M-1.
3. J-1 students
In short, exchange/sponsored students. 22 CFR 62.23(c) requires that student's program financed by a government or international agency, carried out pursuant to agreement between U.S. and foreign government, carried out pursuant to written agreement between governments and/or institutions, or funded substantially by other than personal/family funds.
J category created by Fulbright-Hayes Act of 1961 "to increase mutual understanding between the people of the U.S. and the people of other countries by means of educational and cultural exchanges.
INA 101(a)(15)(J) defines as "an alien having a residence in a foreign country which he has no intention of abandoning who is a bona fide student . . . who is coming temporarily to the United States as a participant in a program designated by the Director of the United States Information Agency, for the purpose of . . . studying . . ."
B. Players and roles (ICE/SEVP, USCIS, DOS, attorneys, Designated School Officials, and Responsible Officers)
DHS-U. S. Immigration and Customs Enforcement, especially Student and Exchange Visitor Program (SEVP): writes F/M regs. and enforces them and laws (inc. sanctions, withdrawal of authorization), adjudicates I-17 (app. for F/M program), manages Student and Exchange Visitor Information System (SEVIS).
DHS-U. S. Customs and Border Protection inspects students at POE.
DHS-U.S. Citizenship & Immigration Services adjudicates some benefits/applications, like OPT and reinstatement for Fs
Dept. of State: writes J regs., designates J programs (although app. submitted through SEVIS), and issues visas
Designated School Official: programs approved to host Fs/Ms designate one Principle DSO (primary DHS contact) and up to 9 DSOs, who handle many functions in SEVIS, approve certain benefits for students (and many advise students, though some may be in Admissions, etc.), ensures school compliance, keeps records, etc.
Responsible Officers and Alternate Responsible Officers (corollary to DSO for J programs): schools approved to host Js designate one RO and up to 9 AROs, who handle many functions in SEVIS, approves certain benefits for students (and many advise students, though some may be in Admissions, etc.), ensures school compliance, keeps records, etc.
Attorneys: May advise students about matters such as COS (for example, to H-1B) or LPR process, may be consulted by students who need reinstatement, may be asked by schools or DSOs for advice or information, may be hired to establish F, J, M programs for institutions.
C. Institutional responsibilities
Don't be surprised to find DSOs and ROs very protective of their programs. Keep in mind that, in addition to realizing that their FJM programs are valuable to their institutions, they realize that they are under much greater (and largely misplaced) agency scrutiny since 9/11.
1. Duties of DSO and RO, institutional responsibilities, sanctions and de- certification
a. For F-1 programs and M-1 programs
1) Extensive DSO and institutional responsibilities, including reporting requirements and record-keeping requirements, set out at 8 CFR 214.3
2) Grounds for withdrawal of school approval to issue I-20s (host F-1/M-1 students) set out at 8 CFR 214.4. Include some specific violations, like "willful issuance of a false statement" in connection with a transfer or employment application or failure to meet reporting requirements, and general ones like "any conduct on the part of the designated school official which does not comply with the regulations" (see 8 CFR 214.4(a)(1)).
3) SEVP is supposed to review school approval every two years (8 CFR 214.3(h)(3)), has stated plans for extensive upcoming recertification project, which has been delayed a couple of times. Most recent indication from SEVP is that recertification will coincide with implementation of SEVIS II scheduled for 2010.
4) Answer to common question from DSOs and others: No specific penalties to institution for students' failure to maintain status, but ICE/SEVP could consider-in periodic "re-certification" or otherwise-unusually large numbers, frequent occurrences, or patterns to constitute a violation of one of the very general grounds for withdrawal of school approval.
b. For J-1 programs
1) Extensive RO and institutional responsibilities, including "monitoring," reporting, and record-keeping requirements, set out at 22 CFR 62.72 and 22 CFR 62.2-22 CFR 62.15
2) Grounds for sanctions and revocations of school approval to host EVs set out at 22 CFR 62.50 (recently expanded -- 72 Fed. Reg. 72245 (December 20, 2007), to include broad violations such as "bringing disrepute to the EV program")
3) Sponsors are approved for a specific period, re-designation is periodically required, and DOS considers a variety of program transactions, possibly including reinstatements/corrections
4) No specific penalties to institution for students' failure to maintain status, but could consider unusual number of reinstatements indicative of a failure to properly advise EVs or even "bringing disrepute" (see 67 Fed.Reg. 76256, 76265 (Dec. 11, 2002) supp.)
II. What you need to know about SEVIS and SEVIS reporting (an overview and update)
A. Primarily it is just a database that is supposed to assist in the checks and balances of complying with the F, J and M regulations written in 8 and 22 CFR. Dispite popular myth, SEVIS was not born out of the ashes of 9/11 (it started in the early 1990s after the 1st World Trade Center and then the CIA headquarters bombings) and the regulations published to created SEVIS did not change 90% of the F-1 regulations, they simply changed the system for recording and storing the student data. New F regulations will be published soon (by Fall 2009) and these would be the first substantial change in F regulations in over a decade. Also the database SEVIS will be changing with in the year to SEVIS II, but it might as well be called "Chuck" as it has very little relation to current SEVIS. Entire concepts will change - becoming entirely paperless.
B. Each SEVIS type is distinctly different, and has it's own set of CFR regulations (M and F in 8 CFR, J in 22 CFR)
The F-1 regulations are very regimented as it gives micro-focus to the operations of a school (admissions, registrar, comenscement) and checks on students each semester. The J regulations are more supportive of exchange and reflect the spirit of the Department of State, which writes the J regulations.
C. Designated School Officials and Responsible Officers ( F and J approved by DHS) are given DHS discretion in how they manage their SEVIS programs within the law. Some differences:
D. Database functionality v.s. regulations. For example:
- Big School- Small School (batch and non batch)
- School culture or mission (music school, community college, large reliance on international post-docs, etc…)
E. Event Reporting and Discretion
- New J-1student gets DS-2019, gets visa at embassy, then requests J-2 visa documents for family. NOT POSSIBLE. The SEVIS database screen (left-hand navigation) lists "actions" or options to affect each record the advisor is looking up. This list of options expands and contracts from a long list to a very short list depending on the "state" of that particular SEVIS student record. If the action (such as adding a family member as J-2 dependent) is not on the list - you can't do it, even if it is permissible w/in the law/ CFR.
- Subject to 2-yr home res. If one school marks this in SEVIS and the scholar continues career at other schools - all other visa documents will have the "subject" on the DS-2019 form - even if it was an error.
- Student drops out of school and SEVIS record is terminated by school. Student travels and returns to US on old Form I-20. CBP issues I-94 card F-1 DS since on paper I-20 is valid.
III. An examination of the F classification, including maintenance of status, changes in program (extension, transfer, change of level, etc.), and reinstatement
A. Maintenance of status
Two places to look for requirements: "General requirements" for "nonimmigrant classes" at 8 CFR 214.1, "special requirements" for students at 8 CFR 214.2(f)
(Fs and Js admitted to U.S. for "D/S" rather than for a specific period-we'll discuss in detail later)
"Duration of status" is defined as "the time during which an F-1 student is pursuing a full course of study . . . or engaging in authorized practical training following completion of studies . . . The student is considered to be maintaining status if he or she is making normal progress toward completing a course of study." 8 CFR 214.2(f)(5)(i)
1. Take a full course of study (may pursue a degree or "specific educational objective"), except during annual vacation or OPT/CPT 8 CFR 214.2(f)(6)(i)
a. For graduate students, as determined by DSO (institution)
b. For college/university undergraduates, at least 12 hours per term, unless last term or authorized for reduced course load)
c. For study at other degree-conferring institutions, 12 hours of instruction per week
d. For ESL students (and some other training programs) at least 18 clock hours per week
e. For elementary/high school, not less than the minimum prescribed by the school for normal progress
--EXCEPTIONS: DSO may authorize-in advance (via SEVIS)-reduction in course load due to illness or medical condition, initial difficulty with English language/reading requirements, unfamiliarity with American teaching methods, improper course level placement, in final term to complete course of study. Also, DSO may authorize RCL for border commuter student "provided that the reduced course load is consistent with the border commuter student's approved course of study) 8 CFR 214.2(f)(18)(ii)
2. Make normal progress (not defined in regs.)
3. Refrain from unauthorized employment 8 CFR 214.1(e)
4. Avoid criminal convictions (conviction of certain crimes constitutes a failure to maintain status under INA 241(a)(1)(C)(i)) 8 CFR 214.1(g)
5. Do not willfully fail to provide full and truthful information requested by the Service 8 CFR 214.1(f)
6. Meet the variety of applicable SEVIS reporting requirements, too (report to DSO no later than 30 days after program start date, notify DSO of change of address within 10 days, etc.)
--DSO can request SEVIS Help Desk to correct some SEVIS record problems (see "I-20 User Manual" at www.ice.gov/sevis)
B. Changes in Program
--Extensions, changes of educational level at same school, and transfers from one school to another are accomplished by DSO(s) in SEVIS (no app. to USCIS)
1. Extensions: Student must "apply" to DSO prior to "program end date" (on I- 20), DSO must "certify" that student has continually maintained status and that delays are caused by compelling academic or medical reasons (and gives examples such as change of major) and update SEVIS record prior to I-20 expiration. Remember, students must be making "normal progress" to maintain status, so don't be surprised if DSOs refuse to authorize extensions for students not progressing. New I-20 issued.
8 CFR 124.2(f)(7)
2. Changes of level: (such as master's to Ph.D.) accomplished by DSO through SEVIS "according to transfer procedures outlined in paragraph (f)(8)." New I-20 issued. 8 CFR 124.2(f)(5)(ii)
3. Transfers from one school to another: student who is maintaining status may transfer to another school, begin new program within 5 months of transfer- out date or completion date on current I-20 (whichever is earlier), and transfer-out/transfer-in DSOs coordinate transfer of student's SEVIS record in SEVIS. New I-20 issued. 8 CFR 124.2(f)(8)
"The district director [note: reg. inaccruate/out-of-date, does not reflect current process of filing at SC] may consider reinstating a student who makes a request for reinstatement on Form I-539 . . . accompanied by a properly completed SEVIS Form I-20 indicating the DSO's recommendation for reinstatement . . . The district director may consider granting the request if the student (8 CFR 214.2(f)(16)):
a. Has not been out of status for more than 5 months at time of filing or failure to file within the 5 month period was the result of exceptional circumstances
b. Does not have a record of repeated or willful violations
c. Is currently pursuing/intending to pursue full course of study
d. Has not engaged in unauthorized employment;
e. Is not deportable on any ground other than section 237(a)(1)(B) [Present in violation of law] or (C)(i) [Nonimmigrant status violators] of the Act; and
f. Establishes to the satisfaction of the Service, by a detailed showing, either that:
i. The violation of status resulted from circumstances beyond the student's control (serious injury or illness, closure of the institution, a natural disaster, or inadvertence, oversight, or neglect on the part of the DSO . . .), or
ii. The violation relates to a reduction in the student's course load that would have been within a DSO's power to authorize, and that failure to approve reinstatement would result in extreme hardship to the student.
So, there are two standards, one (beyond control) for all violations except RCL for which the standard is "extreme hardship"
Prior to 2006, applications filed at district office and adjudicated by "schools officer," then filed at district office and forwarded to CSC or VSC, now filed directly by applicant at CSC or VSC
a. DSO issues from SEVIS a new I-20 with notation "reinstatement requested"
b. Student files I-539 at either CSC or VSC, depending on state in which "school you plan to attend" is located, and includes $300 filing fee, original I-94, reinstatement I-20, letter describing eligibility, financial documents, letter from DSO recommending reinstatement and corroborating student's account (optional but can be helpful)
c. If the Service approves, it stamps I-20, issues approval notice with new I-94, sends both to student, and updates SEVIS record
d. Reinstatement in practice:
i. Shifting jurisdiction from DO and "schools officer" known to DSOs and some attorneys to CSC and VSC caused consternation and has made chances of success more difficult to predict
ii. But common experience is that USCIS does not interpret "beyond the student's control" exclusively as "serious injury or illness, closure of the institution, a natural disaster" as reg. might suggest
iii) For violations RCL violations that would have been authorized by DSO, showing loss of opportunity to continue studies usually suffices as "extreme hardship"
iv) Usually, if the now-unauthorized employment would have been authorized had student not fallen out of status, it will not cause denial (such as continuing assistantship during unauthorized RCL), but if the violation of status was unauthorized employment, reinstatement probably not possible per the reg.
v) Most likely approvals are in situations of DSO error or oversight
vi) In all cases DSO letter can be very helpful (under prior process, schools officers at district offices said DSO letter was most important evidence)
vii) Remember that, since violations of status do not trigger 222(g) and 212(a)(9)(B) [no 222(g) visa cancel.], departure and re- entry to establish status is often a good alternative to reinstatement
--If Canada/Mexico - get new I-94! - and this means student needs to be prepared to discuss status problem and plans to avoid future violations, and attorney should carefully review 8 CFR 214.1(b) (no indication that maintenance of status required for auto-reval) and 22 CFR 41.112(d)(2)(iii) (indicates auto-reval not available if applicant has not maintained status)
--Also, if student is exiting/re-entering U.S. to re-establish status, and visa is expired and new one required, remember that DS-156 asks "have you ever violated the terms of a visa," so must be prepared to discuss
viii) Denial of reinstatement triggers 222(g) and 212(a)(9)(B), and particularly male students from predominantly Muslim countries may be picked up, others NTA'd eventually (sometimes years later) -- you will have to educate judge to get reinstatement in proceedings
ix) Careful and informed decision required
x) Reinstatement re-starts practical training clock
IV. An examination of the J classification, including maintenance of status, changes in program of study (extension, transfer, change of level, etc.), and reinstatement
A. Maintenance of status
The Exchange Visitor program provides a variety of categories, such as college/university students, professors and research scholars, short-term scholars, specialists, trainees, interns, foreign medical graduates, etc. and requirements for maintenance of status vary among them.
1. General requirements:
a. Maintain health insurance meeting DOS requirements
b. Refrain from unauthorized employment
c. Avoid criminal convictions (conviction of certain crimes constitutes a failure to maintain status under INA 241(a)(1)(C)(i)) 8 CFR 214.1(g)
d. Do not willfully fail to provide full and truthful information requested by Service 8 CFR 214.1(f))
e. Also subject to a variety of SEVIS reporting requirements, too (report to Responsible Officer (RO no later than 30 days after program start date, notify RO of change of address within 10 days, etc.)
- Help Desk is a resource to correct SEVIS issues
2. Examples of category-specific requirements:
a. College and university students: pursue a full course of study as defined by the institution, except during annual vacation or academic training or unless authorized for reduced course load
b. Student Intern category: Rule published July 21, 2008, but SEVIS functionality did not catch up until February 20, 2009. Although EV sponsors who were approved for the Student category were automatically approved to issue under the Student Intern category, the category has more in common with the privately sponsored Trainee/Intern categories than with students. Universities are still evaluating how to use this category, if they use it at all.
c. Professors and research scholars: pursue the teaching, research, observation or consulting activities described on the DS-2019 at the location noted, and do not hold a tenure-track position
B. Changes in Program
1. Changes in Program of Study: One aspect of J-1 program that is unique is the concept that one is admitted to complete a defined objective. Changes between categories, with the sole exception of the Professor/Research Scholar categories, require the approval of the DOS, which is very seldom granted and only when "necessary due to unusual or exceptional circumstances." 22 C.F.R. § 62.41(a).
2. Change in Degree Level is called "Matriculation" in SEVIS, and not all types of matriculation between levels is possible (for example, between secondary school and post-secondary program). Changes in major must be carefully considered, particularly where government funding is involved (i.e. Would the foreign government who funded the student's engineering program approve of a change of major to fashion merchandising?)
3. Transfer between programs: Similar issues surround a transfer from one program to another. The principal underlying question is again whether the original objective will remain unchanged. Must remain in same J-1 category. Procedural issues can occasionally be an issue, however this is entirely the domain of ROs at the individual program sites. See 22 C.F.R. § 62.42 ; § 62.76.
4. Program Extensions: Program extensions can be performed by the RO if within the category's maximum duration. There is no maximum duration for student categories, however student must maintain full time enrollment throughout duration of extension in order to maintain status. Other categories do have maximum durations, and there is a procedure in place to request additional time from the Department of State. See 22 C.F.R. § 62.43(c) for details.
1) Effect of waiver of INA § 212(e) on extension eligibility: While not stated in the regulations, DOS has articulated that program extensions are not possible after a favorable waiver recommendation. See 9 FAM 41.62 N10.2
C. Correcting the Record and Reinstatement
1. Correcting the record
Some minor or technical infractions may be remedied by the Responsible Officer or an Alternate Responsible Officer of the institution's J-1 program through a correction of the SEVIS record
22 CFR 62.45(b),(c), and (d)
a. Technical/minor violations listed at 22 CFR 62.45(c)(1), include, for a period of no more than 120 days:
1) failure to extend the Form DS-2019 in a timely manner,
2) failure on the part of the exchange visitor to conclude a transfer of program prior to the end date on the current Form DS-2019,
3) failure to receive RO approval before accepting an honorarium or other type of payment for engaging in a normally approvable and appropriate activity
b. RO corrects record by issuing a Form DS-2019 with "correct the record" notation or, in the case of honorarium, by giving EV an authorization letter
a. For substantive violations, reinstatement is required.
1) Substantive violations include continuing a "correctable" failure to maintain status for more that 120 days, and failure to maintain a full course of study
a) Must show failure to maintain valid program status was due to circumstances beyond the control of EV or due to administrative delay or oversight, inadvertence, or excusable neglect on the part of RO or EV, and must show unusual hardship would result if reinstatement not granted
b. For a variety of violations, reinstatement is not available, including:
1) knowingly or willfully failing to maintain health insurance
2) engaging in unauthorized employment
3) suspension or termination from EV program
4) continuing a "correctable" or "reinstatable" violation of status for more than 270 days
5) failure to pay SEVIS (I-901) fee
Reinstatement is also not available to those who have received a favorable recommendation from DOS on waiver of home residence requirement
c. Reinstatement process requires submission of reinstatement request by RO through SEVIS, payment of $246.00 fee through pay.gov, and then submission of supporting documents including letter from RO to DOS Office of Exchange Coordination and Designation. When DOS approves, RO can issue new DS-2019 to EV through SEVIS.
V. The Two Year Home Residency Requirement
A. One becomes subject to INA § 212(e) in three circumstances:
1. Received funding from either the foreign or U.S. government. See 22 C.F.R. § 62.2. There is a distinction between direct and indirect government funding. Direct funding will make one subject to 212(e). In the case of indirect funding, that funding must have been for the purpose of promoting international educational and cultural exchange.
2. Skills list:
Clarification from Audio Seminar: When a country has been removed in a newer version of the skills list, that individual is no longer subject to 212(e). However, if the country remains on the skills list, but the individual skill is no longer on the new version of the skills list, that does NOT relieve the individual's 212(e) obligation under the prior list. Therefore from a practitioner's standpoint, if the country no longer appears on the most recent skills list, no further review is necessary and your client is no longer subject. However where a country still appears on the skills list, you must go back to the Skills List that applied at the time the program began. See AILA Doc. 09080362 and 09070767.
1984 Skills List: http://www.state.gov/documents/organization/87381.pdf
1997 Skills List: http://exchanges.state.gov/jexchanges/docs/skills_list.pdf
2009 Skills List: http://edocket.access.gpo.gov/2009/pdf/E9-9657.pdf
3. Graduate Medical Education or Training
B. Effect of being subject to INA § 212(e)
1. Not eligible for an immigrant visa or to adjust status;
2. Not eligible for an H visa or an L visa (intracompany transferees and dependents);
3. Not eligible to change status within the U.S. from J to any other nonimmigrant category except A and G;
4. J-2 dependents are subject if the J-1 is subject, so restrictions also apply to J-2 dependents.
C. Common misconceptions:
1. Being subject does not prevent one from leaving U.S. and re-entering in a different NIV status as long as it is not H or L.
2. Those that are subject to 212(e) but who entered in a status other than J are allowed to change status to H or L (only the H and L visa is prohibited). Useful tool when waiver is still pending.
D. Two ways to satisfy INA § 212(e):
1. Return to the country of nationality or last place of permanent residence for two years. Does not need to be continuous. See 9 FAM 40.202 N1.3
2. Seek a waiver of INA § 212(e). Waivers are beyond the scope of today's session. For more information see http://travel.state.gov/visa/temp/info/info_1296.html
E. Effect of a Waiver:
When timing a waiver application it is necessary to understand the impact of the waiver on current J-1 status. DOS sees a waiver as an "exit" from the sole obligation of the program, and therefore restricts the ability to obtain continued benefits after a waiver has been granted. After a waiver is approved by DOS, no future extensions are possible (which could impact post-completion employment opportunities for students, for example) or reinstatements. Transfers can also be negatively impacted.
Tip: Don't seek a waiver when you believe a mistake has been made in the original consular determination. Seek an Advisory Opinion. Advisory opinions have no negative impact on J-1 status.
VI. An examination of the M classification and reinstatement
M-1s: allows student to attend an established vocational or other recognized nonacademic institution (other than in a language training program) in the United States. INA § 101(a)(15)(M)
A. Maintenance of status
1. Take a full course of study except during vacation term, practical training, or if authorized for reduced course load by DSO) 8 CFR 214.2(m)(9)
a. For study at community college, 12 hours per term
b. For other degree-conferring postsecondary vocational or business schools, 12 hours of instruction per week
c. For other vocational programs, 18 clock hours per week
d. For vocational high school, not less than the minimum prescribed by the school for normal progress
2. Refrain from unauthorized employment
--The only employment M-1 students are eligible for is post-completion practical training. No options for on-campus or Curricular Practical Training.
3. Refrain from criminal activity (conviction of certain crimes constitutes a failure to maintain status under INA 241(a)(1)(C)(i)) 8 CFR 214.1(g)
4. Do not willfully fail to provide full and truthful information requested by the Service 8 CFR 214.1(f)
5. Also subject to a variety of SEVIS reporting requirements, too (report to DSO no later than 30 days after program start date, notify DSO of change of address within 10 days, etc.)
--DSO can request SEVIS Help Desk to correct some SEVIS record problems
6. May not change status to F-1 unless erroneously admitted as M-1. May leave and re-enter in F-1. M-2 dependent may change to F-1.
1. Criteria - same as for F-1s (8 CFR 214.2(m)(16)) - see III above
2. Process - same as for F-1s - see III above
VII. Dissecting "duration of status" and overstay/unlawful presence issues for Fs, Js, and Ms
A. Quick review of INA 222(g) and INA 212(a)(9)(B)
1. INA 222(g): When alien remains in U.S. past period of stay authorized by AG, visa becomes void, and alien must obtain visas at consular office located in country of nationality unless extraordinary circumstances
2. INA 212(a)(9)(B): Alien deemed unlawfully present if in U.S. past period of stay authorized by AG, and after voluntarily departing is subject to three-year bar after 181-364 days or ten-year bar after 365 days.
1. Essential to note that Ms are not admitted for "D/S" like Fs and Js, but are admitted for specific period (so have date-specific I-94)
2. Since they are not granted "D/S" but admitted for a specific period of authorized stay, they may overstay and accrue unlawful presence and be subject to 222(g) and 212(a)(9)(B)
C. Fs and Js
1. Admitted for duration of status ("D/S"), so their status endures as long as they maintain it by having a current I-20 or DS-2019 and meeting the other requirements for maintenance of status
2. Since they are admitted for D/S and their period of authorized stay does not expire, when can they become subject to 222(g) and 212(a)(9)(B)?
a. Only when the Service finds a violation of status while adjudicating an application/petition or when an immigration judge finds a violation of status in the course of proceedings (violations of status and SEVIS terminations DO NOT trigger 222(g) and 212(a)(9)(B))
1. Memo of 9/19/1997 from Paul Virtue withdrew prior guidance that violation of "terms and conditions" of nonimmigrant status or commission of crimes rendering one inadmissible or removable triggered 212(a)(9)(B). "Under the modified interpretation, unlawful presence . . . includes only periods of stay in the United States beyond the date noted on Form I-94 [and] does not begin to accrue from the date of a status violation (including unauthorized employment)." Only when an immigration judge makes a finding of violation of status in the course of proceedings or when the Service makes such a determination in the course of adjudicating a benefit application can UP otherwise begin to accrue. AILA doc. 97092240. See also 3/23/1998 DOS cable more explicitly clarifying applicability of 222(g) to D/S cases (AILA doc. 98032392) and 4/4/1998 DOS cable more explicitly clarifying application of 212(a)(9)(B) to D/S cases (AILA doc. 98040490) and 9/19/1999 DOS cable on 222(g), AILA doc. 99071990 .
2. Memo of 3/3/2000 from Michael Pearson further clarifies with respect to D/S: "Nonimmigrants admitted to the United States for D/S begin accruing unlawful presence on the date the Service finds a violation of status while adjudicating a request for another immigration benefit, or on the date an immigration judge finds a status violation in the course of proceedings." AILA doc. 00030774. See also memo of 3/3/2000 from Michael Pearson clarifying that D/S aliens who leave U.S. while COS or EOS application pending do not become subject to 222(g) if no status violation found, AILA doc. 00030773.
3. Memo of 5/6/2009 from Neufeld, Scialabba, and Chang, "Consolidation of Guidance Concerning Unlawful Presence . . ." echoes and does not vary from 2000 and 1997 memos as far as D/S is concerned (see page 25), and discusses the distinction between unlawful status and unlawful presence (see page 9). Revises re- designated Chapter 40.9 of AFM. AILA Doc. 09051468
* Note that these are INS and USCIS guidance, and with the re-organization or splintering of INS, it is unclear whether CBP and ICE will continue to observe the INS guidance or will agree with the USCIS guidance. For an excellent article on the agencies' differing approaches to a similar issue, see Danielle Rizzo's "Is My Client In A Period Of Stay Authorized By The Attorney General? It Depends On Who You Ask!" at http://www.ilw.com/articles/2009,0120-rizzo.shtm
3. In practice, how do Fs and Js become subject to 222(g) and 212(a)(9)(B)?
a. Denial of reinstatement application is far and away the most common route
1) Usually reinstatement application involves admission of violation of status and denial considered a finding of violation of status
--See Bednarz letter, 70 Interp. Rel. 1120-1121 (Aug. 23, 1993), explaining historical approach to reinstatement: (1) admission of violation of status, (2) legal determination that applicant is out of status, and (3) judgment by agency that resumption of status is warranted.
2) Some denial notices state that UP has begun to accrue
b. Denial of COS application, for instance request for B-1/B-2 or H-1B status after F or J program (especially now that 90+ days of unemployment considered violation of status for Fs)
c. Possible in other situations, such as adjudication of I-765 for optional practical training, but rare
d. Of course, pursuant to proceedings
1) Remember, status violations and SEVIS terminations do not trigger 222(g) or 212(a)(9)(B), they may lead to removal proceedings
2) Very difficult to obtain reinstatement in proceedings (must educate judge)
VIII. Effect of lawful permanent residency process on status and eligibility for benefits
WARNING: VERY MURKY AREA.
Whether to maintain, attempt to maintain, or do all things required by nonimmigrant status after applying for adjustment of status is an area requiring careful analysis and advising by attorney. For many clients, it will make sense to maintain status, but for others the benefits of abandoning nonimmigrant status may outweigh the risks. We've probably all seen cases in which the student divorces and withdraws I-485 based on marriage to USC and continues as F-1, and I've even seen one case in which the I-485 denial notice (in divorce scenario) states that student is reinstated to F-1 status. For me, whether an adjustment applicant or even beneficiary of an I-130/I-140 may maintain status, may obtain benefits (like OPT), or may re-enter as a nonimmigrant are very different questions.
A. Maintenance of Status
1. My conclusion-some disagree-is that it is possible to maintain F, J, M status while processing toward lawful permanent residence, even as AOS applicant
a. In Matter of Hosseinpour, 15 I&N Dec. 191, 192 (BIA 1975); 70 No. 42 Interpreter Releases 1444, 1456-58 (No. 1, 1993), the Board of Immigration Appeals found that a student's filing of an adjustment of status application did not in itself constitute a failure to maintain his nonimmigrant status.
The decision includes an interesting discussion of the evolution of section 245 of the Immigration and Nationality Act to allow maintenance of nonimmigrant status while seeking adjustment of status. The 1952 Act provided that "Any alien who shall file an application for adjustment of his status under this section (245) shall thereby terminate his nonimmigrant status. A 1958 amendment to the act specifically eliminated this provision. In recognition of this, the BIA determined in Hosseinpour that Congress intentionally eliminated the termination provision so that maintenance of nonimmigrant status would be possible for adjustment of status applicants.
b. When DSO should terminate SEVIS record is an area of much disagreement and confusion, and you'll encounter many different approaches. Some terminate-incorrectly when I-130 or I-485 is filed, others when student uses EAD to work off campus, yet others when student travels with advance parole.
No official guidance from SEVP (only some indication that they will eventually provide guidance). Changing, occasionally conflicting guidance to DSOs from Help Desk.
Informal guidance from SEVP and usually from Help Desk: When "student files an adjustment of status application (Form I-485) but maintains F/M status, the student's SEVIS record should remain active until the adjustment is approved. The DSO should then manually terminate the record for 'change of status approved.' Note the circumstances in the remarks and provide the student's A number or receipt number."
B. Benefits of status
Once AOS is filed, unlikely to be able to obtain benefits like OPT from USCIS. Some DSOs report students who have EAD based on I-485 also receiving EAD for OPT, but in various liaison settings USCIS has indicated that for AOS applicants who also apply for OPT it would change "(c)(3)" notation on I-765 for OPT to "(c)(9)" for EAD based on AOS. Many DSOs will grant extension or change of level if student has otherwise maintained status, but some will not. Some will not recommend OPT, but others will recommend OPT, encourage student to disclose I-485, and let USCIS decide eligibility.
Of course, once student has applied for AOS, should use advance parole to travel. With labor certification process underway of I-130/I-140 pending, careful analysis of risk and advising of client required. DS-156 does not ask about labor cert. (as did OF-156), but asks about "immigrant visa petition" possible relative-sponsors in U.S., etc. And discussions with Consular Officer can encompass many other topics not on DS-156.
DOS officials regularly indicate at conferences and in other informal settings that Consular Officers should consider near-term intent rather than long-term intent in adjudicating visa application, so a "family 4" I-130 that will probably provide a student a current priority date in about 20 years shouldn't result in denial of a visa for a master's program. DOS cable (http://travel.state.gov/visa/laws/telegrams/telegrams_2734.html) 9/2005 allows for this logic but does not really state it, but rather says that the visa application should be "adjudicated based on present intent - not on contingencies of what might happen in the future, during a lengthy period of study in the US."
See also Cyrus Mehta's article "Students and Immigrant Intent" at http://www.ilw.com/articles/2009,0512-mehta.shtm
- Some schools spend more time verifying facts before taking an action in SEVIS that may not be reversible. E.G. the advisor gets an e-mail from the school registrar that the student dropped a class in law school. They are not supposed to drop until the advisor is able to review and amend the SEVIS record. Is the student "out of status". Some DSO's would check the facts, and sometimes it is found that the student is not out of status (they registered for a new class at the medical school campus to make up for the dropped law school class.)
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