In a very recent decision by the Federal 10th Circuit Court of Appeals, the court found a Foreign Student had not violated her student status, for purposes of seeking an adjustment of status, by switching from a private school to a public school, where the private school closed and ceased operations.
Foreign Student entered the U.S. as a B-2 nonimmigrant visitor and subsequently changed to F-1 student status. In accordance with her status, Foreign Student attended a private school until the conclusion of her sophomore year at which time the school ceased operations.
The school attempted to assist Foreign Student in securing admission to another private school, but was unsuccessful due to the distance of such schools in relation to Foreign Student’s home. She then attended a local public high school and eventually graduated in May 2005. In September 2003, just a few months after Foreign Student’s private school closed, Foreign Student filed an application for adjustment of status.
The application was denied and Foreign Student was placed in removal proceedings for having violated her nonimmigrant status. The immigration judge denied her renewed adjustment application, finding her inadmissible and ineligible and as a “student visa abuser” under INA §214(m). The Board of Immigration Appeals affirmed that decision. At heart of this issue was this regulation:
Adjustment of status is eligible to persons who establish, inter alia, that they are admissible. See INA §245(a). Under INA §214(m)(2), in relevant part, a nonimmigrant student will be deemed to have violated her status (thus rendering her inadmissible), “if the alien terminates or abandons [a] course of study” at a private secondary school “and undertakes a course of study at a public…secondary school” unless the student attends the school for an aggregate period of 12 months or less, or the student reimburses the school for the cost of her education in accordance with INA §214(m)(1)(B).
The appeals court then examined the meaning of “to abandon” and “to terminate”, concluding, the ordinary meaning of these words requires the student to act, not to be acted upon. The court held that under the plain meaning of INA §214(m)(2), Congress intended to penalize only F-1 students who act affirmatively to terminate or abandon their approved course of study.
Because Foreign Student stopped attending private school only when it ceased operations, Foreign Student took no affirmative action to terminate or abandon her course of study at the school. The court concluded that the initial immigration judge therefore erred in concluding that Foreign Student was not admissible for purposes of adjustment of status and remanded the case for further proceedings.