1/3/2007

The U.S. Department of State (DOS) issued a cable to clarify the automatic invalidation of a student's visa resulting from a break in studies. This cable relates to the visa stamp in the passport that is needed for travel. In sum, there are two situations in which a student's break in studies causes cancellation of the visa. One occurs when the student is not in school but remains in the U.S. The other is when a student takes time from school to travel abroad.

Students (F-1 or J-1) who are transferring between schools are regarded as being out of status if they do not resume classes within five months of the transfer. The same five-month window applies to students who are transferring between programs after completion of a course of study. In these situations there is no need for any formal finding that the student is out of status, when the five-month point has been reached.

If there has been a five-month lapse in studies, the student can apply for reinstatement. If it is granted, s/he is back in status and the lapse is forgiven. In that event, the visa remains valid until its expiration date (or until a new status lapse). If the reinstatement is denied, however, the student's status is lost, and the visa is invalidated. The student is regarded as out of status from the point of the denial of the reinstatement request. Thus, in most instances, this requires that the student depart the U.S. without delay and apply for a new visa stamp from abroad.

A student whose visa is automatically cancelled due to failure to attend school and/or denied reinstatement can reapply for a visa at the U.S. consulate in her/his home country. If the student departs in a timely manner, s/he should not be barred from reapplying for a new student visa. The consulate must review the situation, however, to determine if the applicant is really a bona fide student and eligible for a new student visa. The cable directs the consular officers to review the reasons that the student was not attending classes as required. Clearly, the chances of success depend upon the ability to demonstrate a valid reason for the failure to comply with the terms of the student's status.

The second situation in which the student visa is automatically cancelled is when a student is not enrolled and spends more than five months abroad. In that situation, the visa is not valid because student visas are only valid for continuing students. After five months, the student is no longer considered a continuing student. Therefore, even if the visa stamp in the passport has not expired, it is invalid and, if presented at the Port of Entry, the officer can cancel it and deny admission. (If the break is less the five months, the student can return on the unexpired F-1 or J-1 visa with a valid I-20 form from the school.)