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TPS APPLYING STUDENTS: QUESTIONS AND ANSWERS

FOR TPS: Khagendra Chhetry: kc@chhetrylaw.com, (212-947-1079)  OR 

Bashu Phulara: bp@chhetrylaw.com, (Tel: 718-440-5754)

TPS APPLYING STUDENTS, RELATED QUESTIONS AND ANSWERS:

Posted and shared for informational purpose only by: Chhetry & Associates PC

 1. What is TPS, and what does it allow nonimmigrants to do?

TPS is a temporary immigration status granted to eligible nationals of a country (or to persons without nationality who last habitually resided in the designated country) that the Secretary has designated for TPS because the country is experiencing an ongoing armed conflict, an environmental disaster, or extraordinary and temporary conditions. During the period for which the Secretary has designated a country for TPS, TPS beneficiaries may remain in the United States and obtain work authorization, as long as they continue to meet the terms and conditions of the TPS status. The granting of TPS is available only to persons who were continuously physically present in the United States as of the effective date of this designation, and it does not lead to permanent resident status.

2. Upon receiving approval for TPS, what happens to a nonimmigrant’s F or M status?

An F or M nonimmigrant has options related to maintaining F or M status while on TPS. SEVP recommends that the nonimmigrant discuss these options with the DSO before applying for TPS. The option the F or M nonimmigrant chooses will determine continuation or termination of F or M status.

3.Is a nonimmigrant required to maintain F or M status upon TPS application approval?

No, if USCIS approves the application for TPS, the nonimmigrant has no obligation to maintain F or M status. An F or M nonimmigrant that does not maintain status, however, should be aware that the DSO will terminate the SEVIS record. When the Secretary terminates a country’s TPS designation, beneficiaries return to the same immigration status they maintained before TPS (unless that status has since expired or been terminated) or to any other status they may have obtained while registered for TPS.

4. May an F-1 or M-1 student approved for TPS continue a course of study but not maintain F-1 or M-1 status?

Yes, a student may engage in a course of study while in TPS. The student’s DSO would terminate the student’s SEVIS record. The level of enrollment in this circumstance would be a matter of school policy. At the expiration of TPS the student would need to petition USCIS for approval of a change of status to the student’s previous F-1 or M-1 status or to any other status for which the student qualifies, or the student will be out of status at the lapse of TPS.

 4.1 What must a student do to maintain F-1 or M-1 student status while on TPS?

Normal requirements for maintaining status apply. If an F-1 or M-1 student does not maintain a full course of study or is not authorized for a reduced course load, the DSO will terminate the SEVIS record. See 8 CFR 214.2(f)(6) for F-1 students. See 8 CFR 214.2(m)(9) for M-1 students. TPS is not an accepted reason for authorizing a reduced course load.

4.2 May an F-1 student who is currently attending an English as a Second Language (ESL) program apply for TPS? May that student also continue coursework?

Yes, an F-1 student attending an ESL program may apply for TPS and continue the coursework.

 4.3 Should a student report receipt of a TPS-related EAD to the DSO?

If the student files a TPS application and requests employment authorization under TPS, then upon receiving the TPS-related EAD, the student may use the EAD for benefits under this FRN by going to the DSO and asking the DSO to A. Make the required entry in SEVIS B. Issue an updated Form I-20 as described in this FRN C. Note that the student has been authorized to carry a reduced course load and is working pursuant to a TPS-related EAD As long as the student maintains the minimum course load described in this FRN, does not otherwise violate nonimmigrant status as provided under 8 CFR 214.1(g) and maintains F-1 status, then the student maintains F-1 status and TPS concurrently.

4.4 What other option would an F-1 student have for applying for TPS and for benefits under this FRN at the same time?

Under another option, the F-1 student may apply for an EAD under student relief. In this instance, the student must file a Form I-765 with the location specified in the filing instructions. At the same time, the student may file a separate TPS application, but must submit the TPS filing according to the instructions provided in the FRN designating [Nepal] for TPS. Because the student has already applied for employment authorization under student relief, the Form I-765 submitted as part of the TPS application has no fee. As long as the student maintains the minimum course load described in this FRN, does not otherwise violate nonimmigrant status as provided under 8 CFR 214.1(g) and otherwise maintains F-1 status, then the student maintains F-1 status and TPS concurrently.

4.5 When a student simultaneously applies for TPS status and benefits under this FRN, what is the minimum course load requirement while an application for employment authorization is pending?

The student must maintain normal course load requirements for a full course of study unless or until gaining employment authorization under this FRN. TPS-related employment authorization, by itself, does not authorize a student to drop below the normal course load requirements. Once approved for “severe economic hardship” employment authorization, the student may reduce the course load (with a minimum of six semester or quarter hours of instruction per academic term if the student is at the undergraduate level, or for a minimum of three semester or quarter hours of instruction per academic term if the student is at the graduate level). See 8 CFR 214.2(f)(6), 214.2(f)(5)(v), 214.2(f)(9)(i) and (ii). SEVP Policy Guidance 1004-06 Emergent Circumstance Q&A 15

4.6 How would a student with employment authorization under TPS apply for authorization to take a reduced course load under this FRN?

There is no further application process. The student only needs to demonstrate economic hardship caused by the [April 24, 2015, earthquake in Nepal]to the DSO and receive the DSO’s recommendation in SEVIS. See sections 2 and 3, above. USCIS will issue no other EAD.

4.7 Can a student with TPS and lapsed F-1 status apply for reinstatement to F-1 student status?

Yes, current regulations permit a student who falls out of student status to apply for reinstatement. See 8 CFR 214.2(f)(16). For example, this provision would apply to a student who worked on a TPS-related EAD or dropped his or her course load before publication of this FRN, and therefore fell out of student status. The student must satisfy the criteria set forth in the student status reinstatement regulations.

 5. TRAVEL WHILE ON TPS

 5.1 May a nonimmigrant with TPS approval travel on that status?

Yes, the nonimmigrant may travel on TPS, but must follow the instructions for advance parole. The nonimmigrant must submit and receive approval of Form I-131, “Application for Travel Document,” from USCIS. The application process includes a filing fee. (See http://www.USCIS.gov for up-to-date fee information.) The nonimmigrant will receive written notice of approval or denial of the application from USCIS.

5.2 May an F or M nonimmigrant on TPS travel on an F or M visa?

Yes, as long as the nonimmigrant is maintaining F or M status and the student visa has not expired, the nonimmigrant may travel outside the United States and apply for readmission in F or M status. If the student visa has expired, the student can still travel outside the United States as a student but while traveling would need to apply for and receive a new student visa at a consulate. A nonimmigrant in both TPS and F or M status may make a choice as to which status to use for travel.

6. By law the Secretary periodically reassesses the situation. At least 60 days prior to the expiration of the TPS designation or any extension thereof, the Secretary must review the conditions in a foreign state designated for TPS in order to determine whether the conditions for the TPS designation continue to exist. See 8 U.S.C. 1254a(b)(3)(A). The Secretary must terminate the designation upon determining that the foreign state no longer meets the conditions for the TPS designation. 

6.1 Can a nonimmigrant who gains TPS approval and does not maintain student status apply for a change of status back to a previous F or M status?

Yes, the application process for F-1 or M-1 students would include receiving approval for enrollment at an SEVP-certified school, as reflected in an initial student SEVIS record, payment of the SEVIS I-901 fee, and approval of a Form I-539, “Application to Extend/Change Nonimmigrant Status.” In this situation, F-2 or M-2 dependents should file for reinstatement according to the Form I-539 filing instructions.

6.2 Must a student who gains TPS approval and still maintains F-1 or M-1 student status reinstate at the conclusion of TPS designation for [Nepal]?

No, there is no need to apply for F-1 or M-1 student status reinstatement at the end of the relevant TPS.

7. TPS CONSIDERATIONS FOR M-1 STUDENTS

7.1 Does this FRN apply to M-1 students?

No, M-1 students are not affected by the FRN.

7.2 May an M-1 student apply for TPS?

Yes, an M-1 student may apply for TPS.

7.3 Can an M-1 student approved for TPS maintain student status?

An M-1 student approved for TPS can maintain status by engaging in the requisite number of course hours while engaging in unlimited work authorized by the TPS designation. SEVP Policy Guidance 1004-06 Emergent Circumstance Q&A 17

8. SEVIS REPORTING REQUIREMENTS FOR F OR M NONIMMIGRANTS THAT APPLY AND ARE APPROVED FOR TPS

 8.1 What are the reporting requirements for an F-1 or M-1 student on TPS?

An F-1 or M-1 student intending to maintain F-1 or M-1 status while on TPS must continue to report to the DSO as directed by 8 CFR 214.2(f)(17). Nonimmigrants solely in TPS must report as directed by 8 CFR 265.1, using the Form AR-11, “Alien’s Change of Address Card.”

8.2 What does a DSO need to do to update the SEVIS record of an F-1 or M-1 student approved for TPS?

An F-1 or M-1 student in active status in SEVIS and with TPS approval, but who has not yet completed a course of study, must inform the DSO of the TPS status. The DSO should consult with the student to determine if the nonimmigrant will maintain F-1 or M-1 student status. The DSO should address considerations such as the requirements for maintaining a full course of study, the impact on current practical training authorization, impact on status of accompanying spouse and dependents, and, in the case of F-1 or M-1 status termination, options for the nonimmigrant at the expiration of TPS. The DSO must terminate the student SEVIS record within 21 days of the date the student is no longer maintaining F-1 or M-1 status. In most instances, this would occur when the student ceases to attend sufficient classes to qualify as a full course of study. See 8 CFR 214.2(f) and (m).

8.3 What remarks should a DSO use to annotate the SEVIS record for a student who has gained TPS approval but who continues to maintain student status?

For a student who has gained TPS approval and is continuing to maintain student status, the DSO has no cause to terminate the record. A DSO should not change a SEVIS record status. In the remarks section of the student’s SEVIS record, state that the student has maintained status up to the present time and has received approval for change of status to TPS. Include the date, if known, on which the student received TPS approval.

8.4 What reason should a DSO select in SEVIS for termination of a record for a student approved for TPS?

For a student who has gained TPS approval and who chooses not to continue to maintain student status, terminate the SEVIS record for the reason of “Change of Status.” In the remarks section of the student’s record, state that the student has ceased maintaining F-1 or M-1 status and has gained approval for change of status to TPS. Include the date, if known, on which the student gained approval for TPS. Note that when the DSO terminates the student record, the F or M status of an accompanying spouse and dependents also ends. If the accompanying spouse and dependents do not have TPS, they will be out of status. SEVP Policy Guidance 1004-06 Emergent Circumstance Q&A 18

8.5 What does a DSO need to do to update the SEVIS record for a student’s accompanying spouse or dependents who have applied for and been approved for TPS?

If the student maintains F-1 or M-1 status, the spouse or dependents in TPS will simultaneously continue to have F-2 or M-2 status, presuming they have taken no other action that would result in status termination.

 8.6 What should a DSO do with an F-1 or M-1 student’s SEVIS record if the student is on optional practical training (OPT) but received TPS?

A student can continue to work on OPT or to maintain studies. If the student wants to pursue work using an EAD approved for reason of TPS, then the DSO would need to complete or terminate the SEVIS record, as applicable. In the remarks section of the student’s SEVIS information, the DSO should also indicate that the student has TPS and has maintained F-1 or M- 1 status to that point.

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