Monday, January 8, 2018

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
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)