Important: If USCIS approves the reinstatement, the student’s F -1 status is restored retroactively to the date of the status violation, and no unlawful presence is accrued.
However, if reinstatement is denied, and the student was admitted under Duration of Status (D/S) — as is standard for F-1 students — unlawful presence begins accruing as of the date of the denial, not retroactively. This interpretation aligns with USCIS guidance and the 2009 NAFSA-ICE liaison meeting notes. If the student was admitted until a date certain (not D/S), unlawful presence may begin from the date of the status violation, unless tolled by the timely filing of a nonfrivolous I-539 reinstatement request, as provided under USCIS unlawful presence policy. Note: A denied reinstatement may result in significant consequences under INA § 212(a)(9)(B), including a 3-year bar if students accrued more than 180 days , or 10-year bar for students who accrued more than 365 days of unlawful presence and then depart the U.S.
Reinstatement does not eliminate collateral consequences , such as:
• Loss of CPT or OPT eligibility during the out-of-status period,
• Termination of employment authorization, or
• Complications during future visa adjudications , status changes , or U.S. port-of-entry inspections due to a prior record of noncompliance.
3. Motion to Reopen or Reconsider (Form I-290B)
When to file: Within 30 days of the USCIS decision (or 33 days if the decision was mailed).
Applicable when: Termination results from a USCIS decision denying a benefit such as a reinstatement (Form I-539), change of status, extension of stay, or transfer request.
Motion to Reopen: Based on new, material evidence or facts that were not previously available at the time of the decision. The motion must include documentation showing that the evidence could not have been submitted earlier. Motion to Reconsider: Based on legal or factual errors in the adjudication. The motion must cite relevant statutes, regulations, or precedent decisions and demonstrate that the decision was incorrect based on the record at the time.
Limitations:
• Not all types of USCIS decisions are motion-eligible (e.g., some denials issued without a notice of intent).
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