NEW PROVISIONS IN THE IMMIGRATION LAW FOR STUDENTS
USCIS has begun implementing the Student and Exchange Visitor Information System (SEVIS). SEVIS is an internet-based system which collects information on nonimmigrant students and exchange visitors. The SEVIS system became mandatory on January 30, 2003. The system tracks F, M and J students from the time they receive their documents until they leave or graduate from school or leave their program.
On April 12, 2002, then-INS published an interim rule that eliminates the ability of a B visa-holder to begin a course of study at a U.S. school without first obtaining approval from the USCIS to change status to F-1 or M-1 student. The interim rule was effective upon publication. The prohibition against beginning school prior to obtaining USCIS approval of a change of status is limited to B-1 and B-2 nonimmigrants. Thus, prospective students must wait until USCIS has approved their F-1 or M-1 applications before attending school.
Any student who remains in the US beyond 60 days of the completion, termination, or interruption of his or her program is not able to reenter on the existing F-1 visa. He or she must apply for a new F-1 visa in the home country.
Students can violate the terms of their status in several ways. They can engage in unauthorized employment, fail to pursue or complete a full course of study at the school, improperly switch schools or programs, or overstay the time limits for F-1 status. F-1 students and their dependent F-2 spouses may stay in the United States for several years pursuing their school program.
For students admitted for duration of status (D/S), rather than a specific date, unlawful presence begins only if the USCIS finds a status violation while adjudicating an application for another benefit, or when an immigration judge finds the status violation in exclusion, deportation or removal proceedings. When the immigration judge finds that the alien violated his or her nonimmigrant status, unlawful presence begins to accrue as of the date of the judge’s order.
If a violation of status occurs in less than 180 days, the student should either apply to the USCIS for reinstatement of status, or leave the US and reenter on a new visa issued by the US consul in the home country. It is also noted that USCIS has abolished its earlier policy of permitting out of status F-1 students to be reinstated to their current program by way of departing and being admitted on a new Form I-20.
Students may be reinstated to student status in the following situations: 1) the violation resulted from circumstances beyond the student’s control or would result in extreme hardship; 2) the student is currently pursuing or intends to pursue a full course of study, 3) the student is not working without authorization; and 4) the student is not otherwise deportable.
A student who has violated status by engaging in unauthorized employment is not eligible for reinstatement. Such a student would have to leave the US within 180 days of the violation in order to avoid the 3 and 10 year bars.