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| DOS cable on validity of Student visas after a break in studies |
| January 17, 2006 |
The U.S. Department of State has released a cable to clarify the issue of whether
a F-1 or M-1 visa remains valid after a student has a break in studies longer
than five months. There are two circumstances where a student's visa is automatically
invalidated after such a lengthy break.
Students who are not studying but remain in the United States
An individual admitted in F-1 or M-1 status to study in the United States who
is transferring between schools or programs is no longer regarded to be in student
status if classes are not resumed within five months of the date of transferring
out of the previous school or within five months of the date of program completion,
whichever is applicable.
No formal finding of loss of status needs to be made. In order for that student
to restore lawful status, he or she must apply for reinstatement of student status
with the Bureau of Citizenship and Immigration Services (USCIS). A student may
pursue studies while reinstatement is pending.
USCIS has the option to approve or deny reinstatement of student status. If student
status is restored, then the student's F-1 or M-1 visa remains valid (assuming
that the visa has not expired). However, if the student is denied reinstatement,
then the student is held to have lost F-1/M-1 status at that point. Any valid
student visa that was in the student's possession would be invalidated per INA
222(g). Because the student is considered to be out-of-status from the time that
reinstatement is denied, the student must immediately depart the United States.
There is no bar for a student who was denied reinstatement from applying for and
receiving another student visa, but consular officers should review the circumstances
surrounding why the student ceased full-time study and lost status in the first
place, including any actual status violation, in determining whether the applicant
is a bona fide student at the time of application.
Students who depart the United States while in valid student status
Students who are enrolled in schools in the United States will often take a break
from studies and return home for a semester or more. When a student has been out
of the country for more than five months, the student's F-1 or M-1 visa would
be considered to be invalid under 22 CFR 41.122(h)(3).
Under DHS regulations, an F-1 student returning to the United States from a temporary
absence of five months or less may be readmitted for study upon presentation of
a valid I-20. After an absence of more than five months, an alien is no longer
admissible as a continuing student. Under the regulations, an immigration officer
is authorized to physically cancel a nonimmigrant visa of an alien who appears
to be inadmissible. Because a student who has been out longer than five months
can be found inadmissible, that student's F-1 or M-1 visa is subject to cancellation
and should not be used, even though it remains valid on its face.
A student who wishes to resume study in the United States must obtain a new visa.
In order to apply, the student should either obtain a new I-20 from the school
or verify that his/her previous I-20 remains valid and SEVIS record is in active
status before applying for a new F-1 or M-1 visa.
Students who have the approval of their schools to take an extended break from
study must have their SEVIS record terminated for Authorized Withdrawal. When
the student is ready to resume study, the school will issue the student a new
initial Form I-20 with a new SEVIS number. These students must pay the SEVIS I-901
fee.
Some students depart the United States for extended periods of time for activities
related to their course of study, such as field research. Schools are expected
to maintain those students in an active SEVIS status. Since these students continue
to maintain their student status while overseas, their F-1 visas are not considered
being invalid after an absence of more than five months.
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