Your feedback is needed re: SEVP Draft Policy Guidance for Adjudicators 1306-02: ANNUAL VACATION by November 16!

November 10, 2013

SEVP has published proposed policies regarding F-1 annual vacations that would affect your school and students.  It is urgent that you submit your feedback by November 16, 2013. The draft guidance and instructions for submitting feedback are available at Study in the States. SEVP’s broadcast message alerting SEVIS users to this comment opportunity indicated that to comment on the guidance, “e-mail SEVPFeedback@ice.dhs.gov with the title of the guidance in the subject line. Comments for each guidance document must be in a separate e-mail.”

Following is IETS’s assessment of the impact such policies could have on your school and students:

Regulation:  8 CFR 214.2(f)(5)(iii):  Annual vacation . An F-1 student at an academic institution is considered to be in status during the annual (or summer) vacation if the student is eligible and intends to register for the next term. A student attending a school on a quarter or trimester calendar who takes only one vacation a year during any one of the quarters or trimesters instead of during the summer is considered to be in status during that vacation, if the student has completed the equivalent of an academic year prior to taking the vacation.”

Impact of SEVP Draft Policy Guidance:

1.       The draft policy sets a required minimum time an F-1 must have attended a school to be eligible for the initial vacation. This conflicts with the first sentence of the annual vacation regulation which says all F-1 students are in status during the annual (summer) vacation if they are eligible and intend to register for the next term. 

o   The regulation only sets a minimum time a quarter or trimester student must have attended school if the student wants to take off a different term than the summer. It allows such a student to take off the annual/summer after having completed whatever terms precede it.

§  The draft policy at 4.1 seems to agree with the regulation but conflicts with the chart at 4.4.

o   Quarter/Trimester institutions would be required to provide a full course of study for students in the summer in order to be able to admit them in the winter.

§  The policy would treat students at Quarter/Trimester system institutions differently than students at Semester system institutions. [4.4].  This conflicts with the regulation.

2.       Students on a medical Reduced Course Load (RCL) may or may not be entitled to an annual vacation depending on whether they are attending school or not. [4.6.1]

o   All students authorized an RCL are pursuing a full course of study according to the regulations and are therefore entitled to the same vacation benefits as any other F-1 student [8 CFR 214.2(f)(6)(iii)].

3.       Students at a Semester system school may take the annual vacation during any term [4.4].

4.       An F-1 student with a pending petition for reinstatement would have no annual vacation benefit [4.3].

o   This is unclear.  Does it mean that such a student would have to attend school during the annual vacation period?  That would not be possible at all schools.

o   Approval of a reinstatement affirms that there was no violation of status.   That would seem to conflict with prior policy that reinstatement is a judgment that “resumption” of F-1 status is warranted [Letter from Jacquelyn Bednarz, Chief, Nonimmigrant Branch, Adjudications, INS, to Lisa Enfield, Esq. HQ 214f-C undated, 1993. Reported in Interpreter Releases Vol.70 no. 23, pp. 1120-1121 (August 23, 1993)]. What reinstatement means should be clarified.

5.       An F-1 student returning to school after a temporary absence of less than five months is treated as an “initial” student and must accrue the required term(s) again before being eligible for an annual vacation [4.6.4].

o   A student returning after a temporary absence is “readmitted for attendance” and thus resuming F-1 status.  The time outside the U.S. does not count as a period of lawful status but does not begin F-1 status again [8 CFR 214.2(f)(4)].  Thus a temporary absence should not require accrual of the required term(s).   A student returning during the summer in preparation for resuming studies in the fall should be entitled to do so.

o   Confusion appears to exist as to what constitutes a temporary absence according to the policy at 4.6.3.  A temporary absence from the U.S. should begin upon the date of departure by its very definition, not when authorized by a DSO.

 

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