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NASABA BULLETIN: Legal Options and Issues for Tri-Valley University Students – Immigration

November 14, 2011

NASABA BULLETIN Nov. 11, 2011
TVU STUDENTS – LEGAL OPTIONS AND ISSUES

 
Attention Former Tri-Valley University Students:
Many of you have filed for Reinstatement and have also received Notices of Intent to Deny (NOID). This Bulletin describes some of the legal issues related to a potential denial, answers some of your basic questions, and describes your options for regaining valid status in the United States. Please note that this bulletin is intended to be general and does not provide legal advice specific to your case as individual circumstances may vary. For further advice, please consult with an immigration attorney.

 
1. What are the consequences of a denied Reinstatement Application?
A Denied I-539 Reinstatement Application Starts the Clock on Unlawful Presence.
Unlawful presence is defined “as a period of presence in the United States after the expiration of the period of stay authorized by the Attorney General or presence in the United States without being admitted or paroled.” Unlawful presence did not accrue simply because you were enrolled at TVU and the institution closed. The government is taking the position that you fell out of lawful status as of the time when TVU was closed, and possibly even earlier because of potential violations of the visa requirements.However, to determine how long you have been “unlawfully present”, the government will look at the date of denial on your Reinstatement application and begin counting from that point onwards.

Why is this important?

Because it may prevent you from returning to the U.S. even if you qualify for an
employment or family visa. Once you have accumulated 180 days (6 months) or more of unlawful presence in the United States and you depart the U.S. you are prohibited from re-entering the U.S. for aperiod of 3 years. Once you have accumulated more than 365 days of unlawful presence in the UnitedStates, you become subject to a 10-yr bar on readmission to the United States. The only way to waive one of these bars would be to apply for a waiver at a U.S. Consulate in India.
To read more about the basic distinction between being out of status and unlawful presence, pleaseconsult the appendix at the end of this bulletin.

 
2. How else might you start accruing unlawful presence?
If you did not file a Reinstatement application but were placed in removal proceedings, unlawful presence will begin to accrue when the Immigration Judge makes a finding that you are out of status in the United States and are deportable. If you filed another application for immigration benefits, such as an H-4 change of status petition for example, a denial of this application would also trigger the accrual of unlawful presence.

3. Can an appeal, placement in removal proceedings, or taking voluntary departure stop the accrual of unlawful presence?
In short, none of these actions prevent the accrual of unlawful presence:
a. Filing an appeal does not stop the period of unlawful presence from accruing while the appeal
is pending.
b. Being in deportation proceedings or receiving an NTA does not stop the period of unlawful
presence from accruing while in deportation proceedings. However, if you did not file an
application (such as Reinstatement) then unlawful presence is calculated differently. If you
were simply placed in deportation proceedings then unlawful presence is counted after an
Immigration Judge issues a decision on your case.
c. Taking a voluntary departure and waiting for the allowable 120 days to depart does not stop
the period of unlawful presence from accruing

4. What happens if you withdraw your I-539 Reinstatement application?
Withdrawing your I-539 may be one way to stop a denial. However, you will need to seek to restore your status in order to remain in the U.S. Please note as well that since a withdrawal is a more informal process, there have been instances in which the immigration agency has failed to recognize a withdrawal of the I-539. Successfully withdrawing your I-539 prevents you from accruing unlawful presence based on a USCIS denial but you would still be out of status and it is essential that you take steps to either restore your status. Please see question 6 below for some guidance on steps you might take to restore status.

 
5. What are your other options for status in the United States?
First, you need to decide whether you want to respond to the RFE and/or NOID. If your application is denied or you choose not to respond or withdraw your application, you may be eligible for one of the following options instead:
a. Travel to Restore Status: Obtain a new initial I-20 form from your current university,
then leave the US and reenter with a new SEVIS number and I-94 card using a valid F-1
visa within 5 months of your exit. We do not know how those selecting this option will be
treated at the port of entry and whether you will be denied entry. It is recommended that
you consult with an attorney before taking this option.
b. Consular Process for a F-1 or H-4 visa or other non-immigrant visa such as H-1B:
Leave the US and try to consular process from abroad for a new F-1 or other status. We
do not know how individuals selecting this option will be treated at the consulate offices.
Persons who have an option for an H-4 should be able to consular process their H-4 as
long as they can show a bona fide marriage and the H-1B petitioner’s position can
overcome consular scrutiny.
c. Adjustment of Status: Adjust status through an immediate relative (ie spouse, parent,
adult child) who is a Permanent Resident or USC. If through a spouse, the marriage must
be bona fide.
Options such as employment-based permanent residency may be available to some individuals but would require detailed investigation by an immigration attorney and may require that you process abroad for your immigrant visa with a waiver application.

 
6. What are the consequences of taking Voluntary Departure?
If you are in removal proceedings and you take a pre-hearing Voluntary Departure (VD), the visa in your passport is considered invalid under INA §222(g) and you may not be able to return to the U.S. using that same visa in the future. This means that even if your visa is valid on its face, meaning that the visa has not expired, you have been admitted by another institution, and have a valid initial I-20, the government would deny you an entry to the United States based on this old visa.
If you take a Voluntary Departure, make sure that there is no fraud finding. Make sure that you leavebefore 180 days of unlawful presence has accrued if you have a denial on your I-539.
While VD may be the only and best option available to you, it is recommended that you speak to an attorney or legal services provider before taking such action simply because of the risk of a fraud findingand its corresponding consequences.

 
APPENDIX:
a. Out of Status vs Unlawful Presence
An F-1 visa is granted for “duration of status.” “Duration of status is defined as the time during which an F-1 student is pursuing a full course of study at an educational institution approved by the Service for attendance by foreign students, or engaging in authorized practical training following completion of studiesE” 8 CFR §214.2(f)(5). This means that as long as the student is pursuing a full course ofstudy at an accredited school they are in status.
In the case of TVU students, they are out of status as of the closure of the school. They may be
deemed to have been out of status though from the beginning of their enrollment because they never truly attended a full course of study within the meaning of 8 CFR §214.2(f)(6). That code section prohibits taking more than one class per session online or through distance education. According to the NOIDs that have been received, USCIS has taken the position that students were out of status from the date of their enrollment at TVU.
Being out of status or otherwise in violation of one’s status could be grounds for deportation. The good news though is that the foreign student is not subject to an immigration bar (which prevents them from returning for a period of time) simply by virtue of being out of status.
Status is a different concept than “Unlawful Presence.” Unlawful presence may subject a foreign
national to bars to admission. An F-1 student may only be found to be unlawfully present if deemed to be, either by the USCIS or an Immigration Judge.
If the I-539 Reinstatement is denied by USCIS then the date of the denial (not when it is received) starts the clock on Unlawful Presence.
Seeking reinstatement of the F-1 through USCIS as described above in paragraph 1(2) could actually lead to a determination by USCIS that the foreign student is unlawfully present. The same result could arise if the foreign student is before an Immigration Judge in deportation proceedings.
b. 3 and 10 year bars for Unlawful Presence
If unlawfully present in the U.S. for over 180 days but less than 1 year, the alien may be subject to a 3 year bar which may prevent you from returning.
180 days < ULP < 365 days  3 year bar
365 < ULP  10 year bar
These bars to admission kick in when you leave the U.S. As an example, if you leave the U.S. and want to come back in H-1B status or some other status, you will be subject to a 3 year bar if you have been unlawfully present for more than 180 days, or a 10 year bar if unlawfully present for more than 10 year. There may be a waiver available for these bars but you would need to consult with a reputable attorney to determine whether you are eligible.
To reiterate, being out of status does not subject you to a bar, but a denial of the I-539 officially marks you as being unlawfully present in the U.S.

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2 Comments leave one →
  1. Ram permalink
    December 29, 2011 4:12 pm

    Hello,

    My wife was a trivalley student.
    After she submitted COS application few days after the school got closed she got NOID on may 5 2011, She sent a Withdrawal letter and left US in May , got a New H4 visa and came back on a different I-94, We then applied for a H1/H4 renewal , which got approved till 2015.
    and then recently applied for 485 in Nov 10st 2011. But on Nov 15 th 2011 her previous COS application got denied , instead of being withdrawn (even though) withdrawal was sent.

    USCIS denied this COS because they said they didnt get any response.

    on Dec we both got EAD and AP approved.

    My questions is , is she accruing unlaw full presence now, as stated above she has new h4 visa and subsequent H4 renewal.

  2. Ram permalink
    December 29, 2011 4:29 pm

    Also please note,

    The denial notice for COS to H4 doesnt mention any out of status or unlawfull presence.

    Appreciate your help/opinion

    Thanks

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