JUST RECEIVED A NOTICE OF INTENT TO DENY (NOID) FOR A 1-539 (Application to Extend/Change Nonimmigrant Status (about the reinstatement of F1 status)? A LITTLE BIT OF INVESTIGATING THE FACTS CAN GO A LONG WAY!

Case Facts: I had an FN spouse who had filed a second pro se reinstatement of F1 status. She had a prior F1 status reinstatement but since then had fallen out of status due to various factors. For her second reinstatement petition, she had received a lengthy NOID. The main Crux of the NOID was as follows:

  1. USCIS held that due to multiple violations of status the applicant was not eligible for F1 reinstatement;

  2. USCIS asserted that multiple school transfers were questionable and perceived them as a negative;

  3. USCIS contended that the applicant was not a bona fide student because the applicant wanted to pursue her studies in English Language training when she had already completed her prior courses in English and had shown proficiency in English;

  4. USCIS contended that the current School was No Longer Accredited by a Recognized Accrediting Agency;

When I first reviewed the NOID, I was unsure if we could overcome all the points raised by the service especially since this dealt with the second request for an F1 reinstatement and there were multiple status violations. However, as I interviewed the client, it became clear to me that the service had the incomplete picture and there were valid explanations for the status violations. My job was to complete the picture.

In brief, here is how I countered the NOID arguments laid out by the service:

  • The client did have multiple status violations but there was a valid explanation for each violation, and none of the violations were willful and were based on third party or other factors. The first SEVIS termination because the applicant could not start her program as her spouse was not granted an F2 visa. And, she needed her spouse to travel with her from a cultural and practical perspective to help with her children. The second SEVIS termination was based on a misunderstanding and misguidance provided to the applicant by her prior school. The third SEVIS completion was an auto-completion in the record and not within the control of the applicant. The applicant had, in fact, filed a pro se F1 reinstatement previously, and this reinstatement had been granted. However, by the time she got her F1 reinstatement, her program had ended, and she was not able to exercise her OPT option. When she sought to get clarification on whether and how she could correctly use her initial F1 reinstatement, she was not provided information for months by her school and then was told to seek outside counsel. Each SEVIS termination or completion clearly was not willful and outside the control of the applicant.

    Our main contention was that there were valid explanations provided by the applicant and the violation of status resulted from “circumstances beyond the applicants “control” and are were not willful. We further argued that the second reinstatement was due to the misguidance provided to the applicant. I was able to support my arguments by providing a lengthy statement from the client and also providing a letter from the prior school regarding the confusion with the initial F1 reinstatement.

  • The service asserted that there were several school transfers and questioned the basis for the school transfers. We explained each transfer via the client’s affidavit and asked that they not be considered a negative factor in determining the reinstatement of the F1.

    1. For example, the initial transfer of schools was done as the client found a better program and one that was easier for her to commute to;

    2. The second transfer was done as it better met her scheduling needs;

    3. The third transfer of schools was done as the applicant was offered a better educational opportunity by the new school;

    4. The fourth transfer was done to a school she could not join as she was stuck outside the US waiting for her spouse’s F2 approval;

    5. The fifth transfer was done to a school where she completed her program timely;

    6. The sixth transfer was done to a school she enrolled in for further education and done at the time she filed for her second F1 reinstatement;

  • We were able to establish that the client had switched her program to a field of study other than the English proficiency program (before receiving the NOID notice) and describe the reasons for the change. The client’s affidavit corroborated and explained how vested they were in studying and completing the newly enrolled program.

  • We were able to establish that the school was accredited at the time we responded to the NOID and provided a letter of accreditation from the school. USCIS was not accurate in their assertion here.

    The most important factor for the response was to secure a strongly worded letter from the current school supporting the F1 reinstatement and establishing that the client had been regularly attending the classes.

    All the hard work paid off, and the F1 reinstatement was granted within 90 days of submitting the response.

GOLDEN RULES I LEARNED!

  • Looking at the visa violations, in this case, I initially did not see the light at the end of the tunnel, but we were able to effectively argue that the violations were not willful and had extenuating circumstances. My focus was on the “not willful” and “extenuating” part of the argument, and I zealously made my case.

  • Review the veracity of USCIS claims. In this NOID, the service claimed that the school attended by the applicant was not accredited. This was not the case.

  • “Embrace” the NOID and zealously provide a counter argument for every point raised.

  • Use the Kitchen sink approach if needed: Provide as much supporting evidence (primary or secondary) to make your case. My response, in this case, was lengthy not only to have the F1 reinstatement approved but to create a record.

About Shobhana Kasturi

Kasturi Law LLC services client(s) throughout the Chicago land metro area including but not limited to DuPage, Kane, Cook, Lake, Will, Grundy, Kendall, DeKalb, Lasalle, Mchenry counties. Feel free to call us at 630-660-0530 or email me at info@kasturilaw.com to discuss your case and set up an appointment.

Talk to a professional and solution oriented immigration attorney