A lot has been said about reinstatement of student visas but there has been very little guidance regarding how a Tri Valley University student may qualify for such relief. The law which controls reinstatements is as follows:

INA 214.2(f)(16)

(16) Reinstatement to student status —

214.2(f)(16)(i)

(i) General . The district director may consider reinstating a student who makes a request for reinstatement on Form I-539, Application to Extend/Change Nonimmigrant Status, accompanied by a properly completed SEVIS Form I-20 indicating the DSO’s recommendation for reinstatement (or a properly completed Form I-20A-B issued prior to January 30, 2003, from the school the student is attending or intends to attend prior to August 1, 2003). The district director may consider granting the request if the student:

214.2(f)(16)(i)(A)

(A) Has not been out of status for more than 5 months at the time of filing the request for reinstatement (or demonstrates that the failure to file within the 5 month period was the result of exceptional circumstances and that the student filed the request for reinstatement as promptly as possible under these exceptional circumstances);

214.2(f)(16)(i)(B)

(B) Does not have a record of repeated or willful violations of Service regulations;

214.2(f)(16)(i)(C)

(C) Is currently pursuing, or intending to pursue, a full course of study in the immediate future at the school which issued the Form I-20;

214.2(f)(16)(i)(D)

(D) Has not engaged in unauthorized employment;

214.2(f)(16)(i)(E)

(E) Is not deportable on any ground other than section 237(a)(1)(B) or (C)(i) of the Act; and

214.2(f)(16)(i)(F)

(F) Establishes to the satisfaction of the Service, by a detailed showing, either that:

214.2(f)(16)(i)(F)(1)

(1) The violation of status resulted from circumstances beyond the student’s control. Such circumstances might include serious injury or illness, closure of the institution, a natural disaster, or inadvertence, oversight, or neglect on the part of the DSO, but do not include instances where a pattern of repeated violations or where a willful failure on the part of the student resulted in the need for reinstatement; or

214.2(f)(16)(i)(F)(2)

(2) The violation relates to a reduction in the student’s course load that would have been within a DSO’s power to authorize, and that failure to approve reinstatement would result in extreme hardship to the student.

214.2(f)(16)(ii)

(ii) Decision . If the Service reinstates the student, the Service shall endorse the student’s copy of Form I-20 to indicate the student has been reinstated and return the form to the student. If the Form I-20 is from a non-SEVIS school, the school copy will be forwarded to the school. If the Form I-20 is from a SEVIS school, the adjudicating officer will update SEVIS to reflect the Service’s decision. In either case, if the Service does not reinstate the student, the student may not appeal

LEGAL ANALYSIS

Do Tri Valley University (TVU) students qualify for Reinstatement?

“The district director may consider reinstating a student who makes a request for reinstatement on Form I-539, Application to Extend/Change Nonimmigrant Status, accompanied by a properly completed SEVIS Form I-20 indicating the DSO’s recommendation for reinstatement (or a properly completed Form I-20A-B issued prior to January 30, 2003, from the school the student is attending or intends to attend prior to August 1, 2003). The district director may consider granting the request if the student:”

As discussed below, TVU students meet all the requirements for reinstatement except the issuance of a form I-20.  TVU students should not be penalized for bureaucratic issues.  Below is our analysis of the law as it applies to this situation:

I. TRI VALLEY UNIVERSITY (TVU) STUDENTS HAVE NOT BEEN OUT OF STATUS FOR MORE THAN 5 MONTHS.

Based on INA 214.2(f)(16)(i)(A)- (A) Has not been out of status for more than 5 months at the time of filing the request for reinstatement (or demonstrates that the failure to file within the 5 month period was the result of exceptional circumstances and that the student filed the request for reinstatement as promptly as possible under these exceptional circumstances);

In case of the TVU students, it is clear that most of them have not “out of status” for 5 months because the school was closed on January 18, 2011. Therefore, most of the students meet this requirement.

II. MOST OF THE TVU STUDENTS HAVE NOT BEEN REPEAT VIOLATORS OF SERVICE REGULATIONS.

INA 214.2(f)(16)(i)(B) reads “ Does not have a record of repeated or willful violations of Service regulations;”

From all the information we have received, most of the TVU students have not been in “willful violations of services regulations”. The school was closed. Most of the TVU students reasonably relied on the DSO who told them that TVU was compliant with all the rules. In fact, according to Susan Su’s answer, TVU was compliant with all the regulations and was offering virtual classes as a “new trend”. Her answer is consistent with what the TVU students claim was communicated to them. If Susan Su, the president of TVU, is publicly claiming that the school was compliant with all the rules, then one can imagine what the DSO and Susan Su would have communicated to the students.

III. MANY SCHOOLS ARE READY AND WILLING TO OFFER ADMISSION TO TVU STUDENTS AND ARE IN FACT ISSUING ADMISSION LETTERS.

As per  INA 214.2(f)(16)(i)(C) , the student “Is currently pursuing, or intending to pursue, a full course of study in the immediate future at the school which issued the Form I-20;”

Many of the students we spoke with indicated that many schools in the United States are willing or have already issued them admission letters.  According to the school officials, these schools are duly accredited to issue Form I-20s. Therefore, TVU students will be able to satisfy this prong provided, they are allowed to get the I-20s.

So here is the big question, are the students going to get an I-20?

IV. MOST OF THE TVU STUDENTS HAVE NOT ENGAGED IN UNAUTHORIZED EMPLOYMENT.

INA 214.2(f)(16)(i)(D) requires that the student “has not engaged in unauthorized employment;” This is a question of fact. From the information we have gathered most students were working, either on CPT (Curriculum Practical Training) or OPT (Optional Practical Training).  Because both programs require issuance of a work authorization by the USCIS (United States Citizenship and Immigration Services), and most students were actually working their area of expertise, they have not engaged in unauthorized employment.

V. MOST OF THE STUDENTS DO NOT SEEM TO HAVE ANY OTHER GROUNDS OF DEPORTATION AT THIS POINT.

“INA 214.2(f)(16)(i)(E) requires that the student “is not deportable on any ground other than section 237(a)(1)(B) or (C)(i) of the Act; ”

From this analysis, it seems that majority of TVU students do not yet have any other deportable grounds. Other grounds of deportation analysis much be done on case by case basis. Indeed, the most severe allegation by the government is in fact that the students were not complying with regulations. Until we see the particular arguments from the authorities in each case, one can fairly deny those allegations.

VI. BECAUSE TRI VALLEY WAS CLOSED BY THE GOVERNMENT, THE STUDENTS SHOULD SATISFY INA 214.2(F)(16)(i)(F).

Under 214.2(f)(16)(i) (F) Establishes to the satisfaction of the Service, by a detailed showing, either that:

214.2(f)(16)(i)(F)(1)

(1) The violation of status resulted from circumstances beyond the student’s control. Such circumstances might include serious injury or illness, closure of the institution, a natural disaster, or inadvertence, oversight, or neglect on the part of the DSO, but do not include instances where a pattern of repeated violations or where a willful failure on the part of the student resulted in the need for reinstatement; or

214.2(f)(16)(i)(F)(2)

(2) The violation relates to a reduction in the student’s course load that would have been within a DSO’s power to authorize, and that failure to approve reinstatement would result in extreme hardship to the student.

214.2(f)(16)(ii)

(ii) Decision . If the Service reinstates the student, the Service shall endorse the student’s copy of Form I-20 to indicate the student has been reinstated and return the form to the student. If the Form I-20 is from a non-SEVIS school, the school copy will be forwarded to the school. If the Form I-20 is from a SEVIS school, the adjudicating officer will update SEVIS to reflect the Service’s decision. In either case, if the Service does not reinstate the student, the student may not appeal

The relevant portion of this act as it pertains to this case is that the school was closed by the government; therefore, it was clearly not due to the fault of the TVU students.

CONCLUSION

Under INA 214.2(f)(16)(ii), it is clear that most TVU students qualify for the reinstatement. The only missing element is the form I-20.  We all have a duty to ask on behalf of TVU students where is the form I-20? Are they going to give it to the TVU students? And if they are, when are they going to give it to them? Is the United States willing to help TVU students who were victimized on US soil?

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Shah Peerally is an attorney licensed in California practicing immigration law and debt settlement. He has featured as an expert legal analyst for many TV networks such as NDTV, Times Now and Sitarree TV. Articles about Shah Peerally and his work have appeared on newspapers such as San Jose Mercury News, Oakland Tribune, US Fiji Times, Mauritius Le Quotidien, Movers & Shakers and other prominent international newspapers. His work has been commended by Congress women Nancy Pelosi and Barbara Lee. He has a weekly radio show on KLOK 1170AM and frequently participates in legal clinics in churches, temples and mosques. His law group, Shah Peerally Law Group, has represented clients all over the United States constantly dealing with the United States Citizenship and Immigration Services (USCIS), Immigration and Custom Enforcement(ICE) and CBP (Customs Border Patrol (CBP) under the Department of Homeland Security (DHS). This department was formerly known as the Immigration and Nationality Services (INS).