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.

 

Copyright © 2003 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.