Denied entry under F1

[mezamo 4]

Hello there. Looking for some input or advice. Longggg post! 

My niece was here on F1, fell out of status in June 2017 (for missing too many classes). She was advised by school to apply for reinstatement and  not to leave during that..She applied for reinstatement in July 2017 and continue being a full time student, even in summer. Fast forward to May 2018, she got a RFE and school helped her with a letter of support. Fast forward to October 2018 her reinstatement got approved, school issued a new I-20.

In December she went home for Christmas and returned in January before classes. She was denied entry based on "unlawful presence ' and her visa was canceled, sent to a detention center for the night and sent home the next day. (I felt terrible she is only 19 )

So has anyone heard of anything like that? 

I've read everywhere that you dont accrue unlawful presence if you apply for reinstatement within 4 months after falling out of status AND is approved. 

School hasn't been very helpful. So we are trying to understand WHY.  Maybe the school didn't do something they should have with her SEVIS. 

We know she needs to apply for another visa but we need to be prepared before going to the embassy.

Any ideas, thoughts or suggestions?

 

Thanks 

[Boiler 43,434]

I thought a new I 20 needed a new visa?

[SusieQQQ 11,584]

She can only try but expect it to be difficult to get a new visa when she violated status of the same type of visa before.

Edited February 9, 2019 by SusieQQQ

[WeGuyGal 1,052]

why was she missing classes?

[mezamo 4]

On 2/9/2019 at 10:43 AM, SusieQQQ said:

She can only try but expect it to be difficult to get a new visa when she violated status of the same type of visa before.

She violated her status by accumulated many absences, yes. But she applied for reinstatement and it was approved, WHILE she stayed here STUDYING. She was advised to stay here and NOT to leave. Well, by not leaving, now she has unlawful presence. Something that we weren't made aware of.

[Boiler 43,434]

As I understand it she could have remained without issue and completed her studies with reinstatement.

 

But she left so to get back in again she needed a visa as the other one was no longer valid.

 

Did she ask about leaving and coming back?

[SusieQQQ 11,584]

2 hours ago, mezamo said:

She violated her status by accumulated many absences, yes. But she applied for reinstatement and it was approved, WHILE she stayed here STUDYING. She was advised to stay here and NOT to leave. Well, by not leaving, now she has unlawful presence. Something that we weren't made aware of.

The rules on when F1 students accumulate unlawful presence changed in August last year. From the dates you provided in the first post, it looks like the advice was given in good faith and was accurate when she got it, in 2017 and even still so in May 2018 when the RFE arrived. 

See page 3 on of this: https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-08-09-PM-602-1060.1-Accrual-of-Unlawful-Presence-and-F-J-and-M-Nonimmigrants.pdf

I can’t say for certain but it looks like she may have ended up inadvertently accruing unlawful presence between August 9, when the new policy came into effect, and October, when the new I20 was issued? 

Edited February 11, 2019 by SusieQQQ

[Boiler 43,434]

I think she would have needed a visa no matter what but certainly does now.

[SusieQQQ 11,584]

Just now, Boiler said:

I think she would have needed a visa no matter what but certainly does now.

OP said the visa was cancelled so presumably she had one, but I agree with you it’s not clear whether it was the original visa and therefore invalid for entry, or a new one... though...presumably if she had tried to get a new one while she was bac home it would have been refused for the same reason she was refused entry?

[Boiler 43,434]

I assumed it was the original one.

 

But it is an assumption.

[mezamo 4]

6 hours ago, SusieQQQ said:

The rules on when F1 students accumulate unlawful presence changed in August last year. From the dates you provided in the first post, it looks like the advice was given in good faith and was accurate when she got it, in 2017 and even still so in May 2018 when the RFE arrived. 

See page 3 on of this: https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-08-09-PM-602-1060.1-Accrual-of-Unlawful-Presence-and-F-J-and-M-Nonimmigrants.pdf

I can’t say for certain but it looks like she may have ended up inadvertently accruing unlawful presence between August 9, when the new policy came into effect, and October, when the new I20 was issued? 

There are a few exceptions under that law for someone to accrue unlawful presence. She applied for reinstatement in a timely manner(within a month after she fell out of status.  You would have up to 5months)  THEN it was approved.   See the screenshot. 

We have contacted a lawyer now because we are thinking that CBP just made a mistake.  New I 20 was issued in October 2018 when her reinstatement was approved. 

[mezamo 4]

5 hours ago, SusieQQQ said:

OP said the visa was cancelled so presumably she had one, but I agree with you it’s not clear whether it was the original visa and therefore invalid for entry, or a new one... though...presumably if she had tried to get a new one while she was bac home it would have been refused for the same reason she was refused entry?

That was the original visa. Her visa was canceled upon entry when CBP interviewed her and got all the details. 

Her visa wasn't invalid due to falling out of status. Visa didn't determine her status, her SEVIS and I 20 did. 

[SusieQQQ 11,584]

49 minutes ago, mezamo said:

That was the original visa. Her visa was canceled upon entry when CBP interviewed her and got all the details. 

Her visa wasn't invalid due to falling out of status. Visa didn't determine her status, her SEVIS and I 20 did. 

If CBP determined she had accrued unlawful presence then yes that would have automatically voided the visa she had been on. There is a difference between being in status in the US, and leaving and trying to get back in again. She would need a valid visa to re-enter even if her status would have been fine just staying in the US.  Boiler asked a valid question- did her international office know she was going to leave and try re-enter the US?

 

https://travel.state.gov/content/travel/en/us-visas/study/student-visa.html

Under U.S. law, visas of individuals who are out of status are automatically voided (Section 222(g) of the Immigration and Nationality Act).  Any multiple entry visa that was voided due to being out of status will not be valid for future entries into the United States. 

 

— I know you are saying you think they wrongly determined she was out of status, but their actions on the visa were consistent with that determination.

Edited February 12, 2019 by SusieQQQ