Office of International Programs

Reinstatement

Student who violate their F-1 student status will need to seek reinstatement of their status either through travel or by applying for reinstatement within the US.  Based on the new unlawful presence rules the process of applying for reinstatement within the US could have severe negative long-term consequences.  Any student that has violated their F-1 student status should speak with a foreign student advisor in the USM Office of International Programs as soon as possible to determine which options might be possible. 

Important Note: Under the revised Unlawful Presence rule, F or J non-immigrants who failed to maintain their status will begin accruing unlawful presence days on August 9, 2018. (Unless there has already been a formal finding by a DHS officer or by an immigration judge in the course of removal proceedings.) 


Timely Filed Reinstatement Application Within the US

  • When an F-1 student timely files for reinstatement of status, unlawful presence will not accrue during the time the request is pending. A reinstatement application will be considered "timely filed" if the F-1 has been out of status for less than 5 months at the time of filing the reinstatement application.
  • If the reinstatement request is approved, the entire count of unlawful presence arising from the status violation that was the subject of the reinstatement application will be erased
  • A timely filing of a reinstatement request "tolls" or stops the unlawful presence clock while the application is pending. 
  • If the reinstatement application is denied, the accrual of unlawful presence resumes on the day after the denial and will include any unlawful presence time the student accrued before applying for reinstatement.  


Untimely Filed Reinstatement Application within the US

  • When an F-1 student files an untimely request for reinstatement of status,  USCIS DOES NOT suspend the count of unlawful presence while they adjudicate the decision.
  • There is also a much higher burden of proof required when filing an untimely reinstatement request so they can be quite difficult. 
  • If the reinstatement request is approved, the entire count of unlawful presence arising from the status violation that was the subject of the reinstatement application will be erased
  • If the reinstatement application is denied, the accrual of unlawful presence will date back to the date of the initial status violation. Given that reinstatement requests are averaging 12 to 15 months by the time the F-1 student receives an answer they are likely to be well beyond the 180 days of unlawful presence and may even have accrued one year or more of unlawful presence, in which case the three or 10 year bars would apply.

J-1 Reinstatements

  • The new USCIS policy does not include a tolling provision for J reinstatement requests, which are adjudicated by the Department of State. USCIS Adjudicator's Field Manual 40.9.2(b)(1)(E)(iii) states only that USCIS will not count unlawful presence during "The period of time a J-1 nonimmigrant was out of status, if he or she is granted reinstatement under 22 CFR 62.45."

Choosing to Travel versus Applying for Reinstatement in the US

  • For purposes of the 3 and 10-year bars, days of unlawful presence are not counted in the aggregate over multiple visits to the United States; rather, unlawful presence is counted only during any single stay [USCIS Adjudicator's Field Manual 40.9.2(b)(4)(A)].
  • Although a departure from the United States stops and resets the unlawful presence clock, a departure also triggers the penalty provision (3 or 10-year bar) under INA 212(a)(9)(B), if more than 180 days of unlawful presence had been accumulated during that stay before the departure.
  • It is unclear whether DOS and CBP will update their guidance on whether the underlying status violation that triggers the unlawful presence count under USCIS policy also triggers the automatic cancellation of a nonimmigrant visa under INA 222(g), for purposes of determining whether a new F, M, or J visa would also be required. So far, this rule has not changed, but could in the future.  
  • A prior SEVIS record termination may also show up in government databases as a possible ground for ineligibility for a visa or admission. If such a "hit" appears when the student or exchange visitor applies for a benefit, the consular officer or immigration officer must resolve that hit before granting the benefit.

 

In addition to starting or restarting the count of unlawful presence, a reinstatement denial also could eventually result in the issuance of a Notice to Appear (NTA) and the commencement of removal proceedings against the student or exchange visitor.