Q & A April 18, 2004
Q & A 1.2.
Dear Mr. Lee,
Under an F-1 visa, I studied as a graduate student in a state university,
which used the quarter system. My supervisor suggested that I took
some courses again. I, however, withdrew the courses at the end
of the quarter. The international student office then informed me
that my F-1 visa was lost since I withdrew the courses without the
permission from the international student office. I have 2 options
now: 1. Apply for reinstatement; 2. Leave the U.S. and reapply for
an F-1 visa.
Due to some unexpected difficulty, my grades were very bad during
the past 3 quarters. The school allowed me to apply for a hardship
withdrawal.
Questions:
1. Under this situation, which option is the best for me?
2. Will my Canadian permanent residence status be helpful in solving
this problem?
Chen
Dear reader:
1 A reinstatement can only be applied for where the applicant has
not been out of status for more than five months at the time of
filing the request for reinstatement or can demonstrate that failure
to file within the five month period was the result of exceptional
circumstances and that the student filed for reinstatement as promptly
as possible under these exceptional circumstances; that the applicant
does not have a record of repeated or willful violations of immigration
regulations; that the individual is currently pursuing or intending
to pursue a full course of study in the immediate future at the
school which issued the I-20 form; and that the applicant has not
engaged in unauthorized employment; that the applicant is not deportable
under any other grounds than being here in violation of law or failing
to maintain status; that he/she establishes that the violation of
status resulted from circumstances beyond the student's control,
or that the violation relates to a reduction in the student's course
load that would have been within the school's power to authorize,
and that failure to approve the reinstatement would result in extreme
hardship to the student. If you satisfy the above criteria, you
may be able to apply for a reinstatement of status. It is usually
best to resolve a situation while in the United States as a consular
rejection would keep you out of the United States. Of course, it
is oftentimes difficult to foretell the result or how long the adjudication
process will take in the States as these decisions are left to the
discretion of the district director at the local USCIS office.
2 Your Canadian landed immigrant status is helpful and presents
three possibilities if you wish to leave the United States instead
of applying for a reinstatement with the U.S.C.I.S.. If you have
a valid and unexpired F-1 visa in the passport, you could possibly
take a new I-20 form from the school, travel to Canada and return
to the United States without having to see an American consular
officer for another visa. Of course, you might have to explain the
circumstances of your illegality to an immigration inspector at
the port of entry and there is the distinct possibility that you
might not receive a new I-94 upon entry, which might complicate
your school's determination as to whether you are actually in legal
status. If you have an expired visa in your passport, the above
strategy probably would not work as it would be dependent upon the
automatic revalidation of visa provision which allows individuals
from most countries in legal status to reenter the United States
within 30 days of a trip to Canada or Mexico without having to obtain
a new visa so long as they do not attempt to obtain a new visa to
reenter the United States while in Canada or Mexico. However, that
presupposes that the individual is legal in the United States, and
you may certainly be refused entry by an immigration inspector if
he/she discovers that you are no longer attending the school on
a full-time basis. The third possibility would be if you had no
visa in your passport (valid or expired) and traveled to Canada.
In such case, you would certainly have to interview at an American
embassy or consulate for a visa to return to the U.S.. An advantage
for landed immigrants of interviewing in Canada is that consular
officers there tend to be less skeptical where the applicant already
has permanent residence status in Canada.
Dear Mr. Lee
My friend is an asylee who applied for the adjustment of status
at the U.S.C.I.S. But he received a tentative denial, saying that
he was inadmissible for the permanent residence for having entered
the country without inspection. Most people have always assumed
that asylees’ cases were processed under special criteria
and that illegal entry would not make them disqualified.
Question: Do you think this BCIS letter was a mistake done by an
inexperienced officer? How can we rebut it?
Dear reader:
Applicants who are applying for adjustment of status through approved
asylum cases are allowed to adjust status when they have entered
the United States without inspection. Any response by an officer
of the U.S.C.I.S. (new name of INS/BCIS) to the contrary is clearly
wrong. You or your attorney can explain to the officer or his/her
supervisor that asylees are a special class of adjustment applicants
who are not governed by the same section of the Immigration and
Nationality Act as those adjusting status to permanent residence
under other methods. Asylees adjust status under section 209 while
others adjust status under section 245.
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