Re: Immigration matter
PRIVILEGED & CONFIDENTIAL
Jeffrey,
As a follow-up to our discussion, I consulted with Marcia Needleman, Levitt & Needleman, P.C., regarding the prospect of seeking an F-1 visa reinstatement on Carina's behalf. Marcia confirmed the following
Reinstatement may be requested beyond 5 months of being out of status, but in order for U.S. Citizenship & Immigration Services (USCIS) to grant it, they will have to prove exceptional circumstances which can be a very high standard. It appears that obtaining reinstatement even within the 5-month period can be difficult and beyond the 5-month period, substantially more difficult. Alternatively, the person can obtain a new Form I — 20, leave the country, and apply for a new F -1 visa at a U.S. Consulate, but that application may not be granted. Consistent with our initial discussion, in addition to all the usual issues with overstay F -1 visas, she may have a particularly hard time obtaining reinstatement or a new visa because an applicant for an F -1 visa must always prove that they have a solely temporary intention to be in the U.S. and after the studies will return to their home country. In this case, as you mentioned, she applied for political asylum, which is directly inconsistent with a temporary intention to remain in the U.S. and return to one's home country after studies.
For your reference, below is a summary of the F-1 status reinstatement eligibility requirements. In order for Marcia to better assess this matter and the likelihood of successfully petitioning for reinstatement, she would need to review copies of Carina's file, including her student visa filings and asylum application. Please let me know if you would like to forward these materials for her review and evaluation.
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As discussed, I will also be reaching out to my contact at Fragomen to see if they have particular experience with F-1 reinstatement applications and will follow up with you regarding their input. If Fragomen is better positioned to handle this mater, then I can send the background materials to them for their review/analysis.
Regards,
Lisa
Lisa R. D'Avolio
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square | New York | 10036-6522
T:
Skadden
• Under 8 CFR 214.2(f)(16), an F-1 student is only eligible for reinstatement if all of the following conditions apply to the student:
(a) Has not been out of status for more than 5 months at the time of filing the request for reinstatement (Orthe 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)
(b) Does not have a record of repeated or willful violations of [USCIS] regulations
(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
(d) Has not engaged in unauthorized employment
(e) Is not deportable on any ground other than section 237(a)(1)(B) or (C)(i) of the Act
- Establishes to the satisfaction of the [USCIS], in detail showing, either that:
• 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 violations or where a willful failure on the part of the student resulted in the need for reinstatement or
• 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
If the Service does not reinstate the student, the student may not appeal that decision.
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To ensure compliance with Treasury Department regulations, we advise you that, unless otherwise expressly indicated, any federal tax advice contained in this message was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or applicable state or local tax law provisions or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.
This email (and any attachments thereto) is intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this email, you are hereby notified that any dissemination, distribution or copying of this email (and any attachments thereto) is
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strictly prohibited. If you receive this email in error please immediately notify me a and permanently delete the original email (and any copy of any email) and any printout thereof.
Further information about the firm, a list of the Partners and their professional qualifications will be provided upon request.
yes i will put together the file in pdf.
Jeff,
Once you assemble the PDF file, I can forward it to Marcia. Alternatively, if you'd prefer, I can send you Marcia's address so that you can send a hard copy to her directly.
Regards,
Lisa