Out of status?

I

Irenec

Registered Users (C)
My classmate in graduate school failed a class in the 2nd year and had to stay for a 3rd year in the school. Since he's got all required credits to be qualified for graduation except the one he failed, he did not take full credit (9) in the 3rd year. He never worked during the 3rd year. Would he be considered out of status and therefore will meet trouble when he applies I-485? If he receives a Notice of Intend to Deny, can he appeal?

Thanks!

Irenec
 
Irenec said:
Would he be considered out of status and therefore will meet trouble when he applies I-485?
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Did he have a visa and an I-94 valid for all the time he spent at school, especially the third year?
 
Assuming above (that is, his I-20 was valid for his entire stay in the school), it's OK to take less than 9 credits provided it is the last semester. Note that F-1 usually get I-94 for D/S, that is, duration of F-1 status, and hence I-20 determines it's validity.
 
I-94 and I-20 were valid at all times

The F1 Visa on the passport is listed to be valid for 5 years so I guess this one is ok. I think his I-94 was never expired. The I-20 was valid for 3 years and he had it extended for the year of OPT. In addition, since the class only opened in the Spring semester, he didn't take any class in the Fall semester of the 3rd year.

By the way, he got the OPT after graduation without any problem.. Can we assume that the INS is ok with his condition? Or this scenario can not be applied to I-485?

Thanks a lot for your feedback!

Irenec
 
> addition, since the class only opened in the Spring semester,
> he didn't take any class in the Fall semester of the 3rd year.

This may not be OK -- you cannot have less than 9 credits for any "regular" semester (ie, Fall or Spring) unless it's the last semester. The school international student advisor can grant waivers of this requirement in special cases (I believe) or you can put in Thesis Research if he chose thesis option. Try talking to an attorney -- maybe you can work out something with the school's International Students Office.

It's unclear to me the dates he took classes, got OPT etc - it may help if you post a clear chronological sequence of dated events. Basically, for every regular (fall/spring) semester, you need to take up 9 credits. The exceptions are:

1. If it's the final semester, <9 is ok
2. If it's summer, 0 credits ok provided that summer is not your first semester
3. If you have thesis going on, you can fill 9 units with thesis research
4. Once you enter approved OPT period, there's no credit requirement
5. If you have a pending application with BCIS, you may have more options

First talk a lawyer. Then talk to schools International Students Office. Tell them your situation and you would do anything to prevent being seen as out of status. These two guys should be able to help you out.
 
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Thanks for your reply, talkative~

Here is the history that I know of:

Entered graduate school in Fall 1999
Took full credit for the first 2 years
Failed one class in Spring 2001
No class in Fall 2001
Took one class (3 credits) in Spring 2002 and passed
No thesis throughout his study
Graduated in May 2002
Applied OPT in June 2002
Received OPT in July 2002
OPT expired in July 2003 - changed to H1
Concurrent filing I-140 and I-485 in December 2003
I-140 not yet approved as of September 2004
 
I think your friend may be OK. The primary reason is that you say that the I-20 was valid for 3 years. So as far as BCIS knows, your friend was in-status for 3-years and then the additional year of OPT. During those times (unlike now), BCIS did not have record of number of units you took. And it appears to me that Fall 2001 and Spring 2002 could both be considered your friends "last semesters".

So I think the fact that he spent a semester without taking courses may not come up at all, because BCIS may not look closely at school transcripts. In fact, I don't even remember giving transcripts to BCIS with my 485 application -- just the final degree certificate.

I personally think he should be OK because I doubt BCIS will look THAT closely at records, at least on an average case. But I'm a layperson who has no much idea of law, so you should talk to an attorney.

Best of luck!
~T
 
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