Lessons from my successful F-1 reinstatement case: be careful about online courses

As you probably know, people within the U.S. in a nonimmigrant status (which includes F-1 students) are required to maintain, at all times, the conditions of their status, lest they incur the wrath of Donald Trump[1]. However, sometimes, for whatever reason, an F-1 student might do something to fall out of status. In such a case, that student might be eligible for “reinstatement.” If approved for reinstatement, the immigration service essentially forgets about or forgives the issue that caused the falling-out-of-status, thus allowing the student to continue in such status.

Such a student could be reinstated if that student

-       files the application no more than five months following the status violation (or else the student shows that a delay resulted from exceptional circumstances and that the student filed as soon as possible under such circumstances)

-       has no record of repeated or willful status violations

-       is pursuing a full course of study at the school that issued the student’s I-20

-       has refrained from unauthorized employment

-       is (generally) not deportable for other reasons, and

-       fell out of status due to circumstances beyond the student’s control[2]

This last point is probably the most important one for reinstatement, and also probably the most difficult one to prove. The regulations give examples of such circumstances, and they include natural disasters, closure of the school and “inadvertence, oversight or neglect of the [designated school officer].”

Last year, a woman contacted me because of her F-1 status problem. She had graduated with a degree in music, but failed to survive the H-1B lottery that year. Therefore, in order to maintain status, she enrolled in a master’s program at a different school, and began taking several courses there. She did so, however, not via traditional in-person attendance, but rather via online learning. A few months later, after leaving the U.S. for her home country and then returning, she learned from a Customs and Border Protection (CBP) agent that she had a status problem, and that she needed to talk to the school. Nonetheless, the agent allowed her to enter the U.S.

When the woman investigated further, she learned that she had violated a particular regulation regarding online courses. Specifically, she had counted, as part of her full course of study, more than “the equivalent of one class or three credits per session, term, semester, trimester, or quarter” via online study[3]. Or, put another way, she had taken too few courses via traditional in-person attendance.

When she came to me, I explained that she had two options. First, she could depart the U.S., then re-enter on an F-1 visa. Or, she could seek reinstatement, and if successful, she could resume F-1 status without having to leave the U.S. She responded that in her view, leaving the U.S. would be too risky for her. She therefore asked me to file for reinstatement.

In analyzing her case, I decided that our best chances for success were to show that the school had exhibited the inadvertence, oversight or neglect that the regulations reference. In particular, I decided to focus on the school’s failure to warn her about her taking too many online courses.

I realized that this argument carried with it the danger of rejection. That is, I realized that the immigration service could respond that she should have known about the limitation on online courses. However, I believed we had valid counterarguments. In the first place, we pointed out that other schools did caution international students about the limits of counting online courses towards a full course load. In particular, we provided screen shots of web pages of such schools, showing such warnings. More importantly, though, we had email exchanges between my client and school officials. In these emails, the latter admitted that ALL of the courses in her degree program were online courses.

I argued, therefore, that my client’s situation was different from one in which she already was taking in-person courses, but then signed up for online courses. In the latter case, hypothetically, her signing up for “too many” online courses really would have been her fault. However, in her actual case, the school never should have made this degree program available her, or to any other F-1 students, in the first place. Enrolling in such a program would cause ANY such F-1 student to violate status. In other words, the emails from the school were the “smoking gun” that showed that the school had erred.

We filed the forms and evidence in February 2017. Eight months later, in November, we received a request for evidence (RFE) for statements from her previous school (i.e. the one where she had the problem regarding online courses) and her current school (the one she changed to later), and other documents, and we provided the requested material. A week before Christmas 2017, we received her approval notice. After we received it, I joked to her that the notice was the best Christmas present she could have ever received, and she agreed.

What, therefore, can we learn from this experience? First, if you are an F-1 student, stay away from any degree program in which the courses are offered only online. Such a program is never suitable for you, because you are required to take a minimum number of courses via the traditional in-person mode. Second, be aware that taking online courses, by itself, does not cause a problem. There is no limit on what you can take online, so long as you recognize that only a certain amount can count towards your full course of study requirement.

I had made clear to her, as I do to any other client, that I was and am unable to guarantee success in any case that I file. I did promise, however, that I would do all I ethically could on her behalf. I was and am happy for her, because now she can continue with her studies and to continue negotiating a job offer she had received.

The information in this blog post is not legal advice and does not create an attorney-client relationship.

Calvin Sun, Attorney at Law

215-983-3723, 610-296-3947

csun@calvinsun.com

we chat and Skype: calvin_t_sun

---

[1] 8 C.F.R. 214.2(f)(6)

[2] 8 C.F.R. 214.2(f)(16)

[3] 8 C.F.R. 214.2(f)(6)(G)

Suggestions on personal safety with respect to transportation

The prudent see danger and take refuge, but the simple keep going and pay the penalty. (NIV)  Proverbs 27:12

I am sending you out like sheep among wolves. Therefore be as shrewd as snakes and as innocent as doves. (NIV) Matthew 10:16

By now you likely have heard about the incident involving Yingying Zhang. A visiting scholar at the University of Illinois, she disappeared in early June after being seen entering a car. Through the time of this writing she is still missing. However, the police have arrested a suspect.

This tragic matter underscores the importance of being careful about one’s safety. In this post, I will focus on two aspects of this topic: protecting oneself when hailing a taxi or using a ride service, and understanding the use of unmarked police cars.

Safety regarding taxis and ride services

Before entering a taxi that you have summoned, verify that the driver really is the driver. Generally speaking, a driver is required to post personal information for passengers, and such information most likely is behind the driver’s seat. It should include the name and photograph of the driver. A good idea would be to photograph this information. Consider also photographing the license number of the taxi. Be aware that in many states, taxis and other vehicles have both front and rear license plates. In others, such as Pennsylvania, however, they have only rear plates.

Having this information yourself, while better than nothing, is still of limited use. To more fully protect yourself, make sure someone else knows it, such as a friend, spouse or other person. Equally important: make sure the driver knows that someone else knows. Therefore, after you photograph the driver information sheet or the tax license plate, text the information to another person, but also call the person and let that person know, loudly enough so the driver can hear. While no guarantee of safety, doing so does reduce the chances that the driver might attempt anything improper. If anything were to happen to you, the driver knows that he or she would be the first person the police would contact.

The same general precautions apply if you are using a service such as Uber. In these cases, you may already know details about your ride, because the service may send it to your phone. In this case, you can either use any “share ride details” feature, or else capture the screen as a photo yourself and text it. If you are in a place where many drivers are likely to gather, such as a theater or concert hall at the end of a performance, make sure that the ride is really your ride. Even if the driver is genuine, selecting the wrong one may result in your going to an unknown or undesired destination.

Understanding the use of unmarked police cars

This information is useful if you are or will be driving. Most of not all local police departments use unmarked cars. Such cars look like regular cars—that is, they will not have conspicuous roof-mounted emergency lights, and also will not have special paint patterns or signage to indicate a police car. Although different states and local departments may have their own policies and regulations, here are some things to consider nonetheless:

-       Is the person wearing a uniform, or not

In Pennsylvania, police officers who drive unmarked cards must be in uniform. 37 Pa. Code § 42.21.  An officer also must carry identification to verify his or her identity unless doing so jeopardizes the officer’s safety due to work assignment, and shall produce it upon request. Id.

Other states may or may not have the same requirement. Or, in other states, different policies might exist depending on the county or municipality itself.

FYI I have observed, in New York City, unmarked police cars driven by plainclothes rather than uniformed officers. Either New York State or New York City have no equivalent regulation to that of Pennsylvania, or else the officers were disregarding it.

-       Type of emergency lights

The Pennsylvania vehicle code outlines the types of lights an unmarked police car MAY have. It does not, from what I saw, outline the types of lights it MUST have. However, I suspect that a genuine unmarked police car with its emergency lights on, whether in Pennsylvania or any other place, will resemble the Rockefeller Center Christmas tree. Put another way: be wary of a car that has, for example, only a single light, be it red, blue or any other color.

In any case, if you have any concerns about whether a car is truly a police car, you could try calling 911. Then describe your situation and request a regular marked car to come.

The above information does not constitute legal advice and does not form an attorney-client privilege. This information is not guaranteed to produce any particular result.

Calvin Sun, Attorney at Law

610-296-3947, cell 215-983-3723

We Chat: calvin_t_sun

H-1B lottery: update on the "fat lady"

In a previous post, I explained the phrase "It ain't over 'til the fat lady sings." With respect to the H-1B lottery, only when you receive a blue sheet from USCIS, along with your original filing and uncashed filing fee checks will you be sure that you failed the lottery.

In fact, USCIS has cashed filing fee checks as late as May 17, more than one and half months after the filing period. I would not be surprised if even now other checks are cashed. In other words, you still might have a chance of being selected.

In a later post, I will explain the consequences of not being selected.

The above information is not legal advice and does not form an attorney-client relationship.

Calvin Sun, Attorney at Law
215-983-3723
csun@calvinsun.com
We Chat: calvin_t_sun

H-1B lottery: still waiting for the fat lady

The late American baseball player Yogi Berra used to say that "it ain't over 'til the fat lady sings." He meant that because baseball (unlike football, soccer, hockey or basketball) has no game clock, a team can never run out of time. Regardless of how far behind a team is, they still can win so long as they avoid making the third out of an inning. His mentioning a "fat lady" is a reference to opera, the ending of which is signified by a (usually female) opera singer's performance.

I mention this point because this morning, May 2, 2017, a client called me. She was happy because she learned that the H-1B filing fee checks of a co-worker had just been cashed.

Therefore, even though more than a month has passed since the H-1B filing period, one still could have been selected. If you are still waiting, you still might have a chance. For you, the fat lady might not have sung yet.

The above information does not constitute legal advice and does not form an attorney-client privilege.

Calvin Sun, Attorney at Law
215-983-3723
csun@calvinsun.com
We Chat: calvin_t_sun

H-1B lottery results: check cashing can precede mailing

If your employer filed an H-1B cap-subject petition for you at the beginning of April, you might still be unsure of whether or not you survived the lottery. The clearest indication, of course, is that your attorney or employer received the I-797 notice, which would contain your receipt number. However, that receipt can take awhile to arrive.

In many cases, a better indication is the cashing of your filing fee checks. For this reason, you might want to consider checking with your company's accounts payable people. In particular, the government might cash the checks before sending you the receipt.

You may be encouraged to know that some employers are still having those checks cashed. Yesterday, for example (April 27) one current F-1 student called to say that it happened with him and his employer. I was happy to hear this news, because I still had not received his receipt. I expect to get it in the next few days. In other words, the government can cash the filing fee checks before sending you the receipt.

Therefore, even if you haven't heard anything by now, you still could have been selected. It isn't over until your employer receives back your petition papers, along with the uncashed checks.

The above information does not constitute legal advice and does not form an attorney-client relationship.

Calvin Sun, Attorney at Law

610-296-3947, cell 215-983-3723

csun@calvinsun.com

We chat: calvin_t_sun

New green card format effective May 1, 2017

USCIS is changing the format of green cards effective May 1, 2017. See this link. The new format will contain features that make forgery more difficult.

Please remember that the use of fraudulent or false immigration documents is NOT COOL, and could prevent you from becoming a permanent resident or a U.S. citizen. It also could lead to your being prosecuted.

If you are holder of a "conditional" green card, which is good for only two years, you MUST apply in time to remove the conditions. Otherwise, you are subject to removal. Examples of conditional green cards are those based on a fewer-than-two-years-old marriage, as well as the initial EB-5 investment green card.

Text follows:

USCIS Will Issue Redesigned Green Cards and Employment Authorization Documents

Release Date: April 19, 2017 

               

WASHINGTON – U.S. Citizenship and Immigration Services today announced a redesign to the Permanent Resident Card (also known as a Green Card) and the Employment Authorization Document (EAD) as part of the Next Generation Secure Identification Document Project. USCIS will begin issuing the new cards on May 1, 2017.

These redesigns use enhanced graphics and fraud-resistant security features to create cards that are highly secure and more tamper-resistant than the ones currently in use.

The new card designs demonstrate USCIS’ commitment to continue taking a proactive approach against the threat of document tampering and fraud. They are also part of an ongoing effort between USCIS, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement to enhance document security and deter counterfeiting and fraud.

The Redesigned Cards
The new Green Cards and EADs will:

• Display the individual’s photos on both sides;
• Show a unique graphic image and color palette:
  • Green Cards will have an image of the Statue of Liberty and a predominately green palette;
  • EAD cards will have an image of a bald eagle and a predominately red palette;
• Have embedded holographic images; and
• No longer display the individual’s signature.

Also, Green Cards will no longer have an optical stripe on the back.

How To Tell If Your Card Is Valid
Some Green Cards and EADs issued after May 1, 2017, may still display the existing design format as USCIS will continue using existing card stock until current supplies are depleted. Both the existing and the new Green Cards and EADs will remain valid until the expiration date shown on the card.

Certain EADs held by individuals with Temporary Protected Status (TPS) and other designated categories have been automatically extended beyond the validity date on the card. For additional information on which EADs are covered, please visit the Temporary Protected Status and American Competitiveness in the 21st Century Act web pages on uscis.gov.

Both versions are acceptable for Form I-9, Employment Eligibility Verification, E-Verify, and Systematic Alien Verification for Entitlements (SAVE). Some older Green Cards do not have an expiration date.  These older Green Cards without an expiration date remain valid. Individuals who have Green Cards without an expiration date may want to consider applying for a replacement card bearing an expiration date. Obtaining the replacement card will reduce the likelihood of fraud or tampering if the card is ever lost or stolen.

Eligibility for Green Cards and EADs
For more information about the Green Card application process, please visit USCIS.gov/greencard.
To request an EAD, you must file Form I-765, Application for Employment Authorization. Visit uscis.gov for more information about EADs.

The above information does not constitute legal advice and does not form an attorney-client relationship.

Calvin Sun, Attorney at Law
215-983-3723
csun@calvinsun.com
we chat: calvin_t_sun