F-1 visa students who violate the terms of their visa by failing to comply with the Department of Homeland Security rules risk falling out of their visa status, losing benefits such as on-campus employment, and CPT and OPT opportunities. 

To regain the F-1 status, students have two options: 

1. Applying for reinstatement by demonstrating the violation was out of their control and that they intend to continue their studies. This option is available if the student hasn't been out of status for more than 5 months and meets other criteria including not having engaged in unauthorized employment.

2. Obtaining a new SEVIS record and leaving and re-entering the U.S. with a new I-20, a valid visa, and passport. This path has implications for practical training eligibility, requiring the student to complete one academic year of full-time enrollment before qualifying for CPT or OPT again.

The reinstatement process includes consulting with a Designated School Official (DSO) and compiling a range of personal, financial, and academic documents including a detailed explanation of why the student fell out of status. The documents along with Form I-539 and I-539A (if applicable), the SEVIS I-901 fee proof, and a biometrics service fee need to be submitted to the USCIS for processing. During this period, students must maintain full-time enrollment and are advised against traveling out of the U.S. as it could be seen as abandoning the reinstatement application. 

It's notable that the process involves considerable documentation and adherence to guidelines set by the USCIS, including those regarding fees and biometric appointments. The processing times can be checked on the USCIS website. If the reinstatement application is denied, the student will have to leave the U.S. to avoid unlawful presence, with limited options for appeal. Reinstatement is a crucial procedure with serious implications for the student's stay in the U.S and their academic journey. It is a structured process necessitating careful adherence to regulatory requirements.

What is an unlawful presence?

“Unlawful presence" refers to the period during which an individual remains in the United States without adhering to the conditions or beyond the duration allowed by their visa or by the Department of Homeland Security (DHS).

On February 6, 2020, a permanent injunction was issued, restricting the DHS from enforcing its policy guidance from August 8, 2018, regarding unlawful presence calculations for F, M, and J nonimmigrant visa categories. Consequently, the USCIS reverted to its previous policy for these visa categories, which stipulates that unlawful presence for individuals admitted for the "duration of status" (D/S) is not counted until a USCIS officer or an immigration judge formally finds a status violation, typically during the adjudication of a request for some benefits such as reinstatement. If a student's reinstatement application is denied, the consequences can be substantial, including the potential initiation of removal (deportation) proceedings through a Notice to Appear the triggering of INA § 222(g) overstay provisions, and the accumulation of unlawful presence under INA 212(a)(9)(B). These repercussions can significantly disrupt a student's education and hamper their future eligibility for immigration benefits. Given the severity of the potential outcomes, it is imperative for students to consult with experienced immigration attorneys before making decisions on how to regain their lawful status in the U.S., to understand all the nuances and ensure they take the steps that are most conducive to protecting their interests.