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Practice Tip Concerning I-539 Applications To Reinstate F-1 Status Or To Change Status To F-1 By Minorsby John Kang
I thought I would offer this practice tip through your
daily news to immigration law practitioners, especially those in California,
regarding applications to reinstate F-1 status or change of status to F-1 by
minors.
Recently, I have noticed
a trend going on in the California Service Center (CSC) concerning applications
to reinstate F-1 status or change status to F-1 by minors whose F-1 status has
lapsed or who are in another status. The trend is that CSC adjudications
officers have been sending out requests for evidence (RFEs) requesting, among
other things, proof of guardianship for the minors. Many of these minors are in
the U.S. staying with their uncles, aunts or other relatives while studying in
private schools. Faced with this kind of requests, I have learned through some
of my clients and friends, their former immigration attorneys have obtained one
of two documents in response to the RFEs for evidence of guardianship: (1) a Caregiver’s Authorization
Affidavit under California Family Code Section 6550 et Seq., which is an
affidavit signed by the minor’s parents, if they are in the U.S., authorizing
the caregiver to enroll the minor to school and to consent to school-related
medical care; (2) a notarized document from the minor’ home country indicating
that the minor’s parents have authorized the U.S. relative to act as guardian of
the minor. To my knowledge, attorneys who submitted one of these two documents
have not been successful in their responses to the RFEs because many of the
subject applications have been denied by CSC adjudications officers and some of
the denials have resulted in administrative appeals being filed.
Although it
appears that neither the INA nor Title 8 C.F.R. specifically requires that
applications submitted by or for minors be accompanied with evidence of
guardianship for the minors, rather than fight the denials by filing
administrative appeals, I have discovered a way that has successfully met the
requirements of the RFEs requiring proof of guardianship by way of obtaining an
Order Appointing Temporary Guardian from the Superior Court of the State of
California. The procedure involves the U.S. relative filing a Petition for
Appointment of Guardian of Minor. After the petition is filed or concurrent with
the filing of the petition, the intending guardian files an Ex Parte Application
for Temporary Guardian. If the ex parte application is made before 10:00 a.m.,
an Order Appointing Temporary Guardian can be issued by a judge by 3:30 p.m. the
same day if the application meets the legal requirements for the issuance of an
Order Appointing Temporary Guardian. Thus, beating the 30-day deadline for
responding to an RFE should not be a problem. CSC adjudications officers have
accepted the Order Appointing Temporary Guardian as satisfactory evidence in
response to their RFEs for proof of guardianship of the minor-applicants and
they have, therefore, approved the applications supported with such temporary
guardianship orders, usually about one month after the responses are received.
After the
applications are approved, it usually will take
several more months for the court to complete the guardianship appointment
process which involves the Family Court Services conducting an investigation of
the temporary guardian and preparing a report for the court to rely on in its
assessment on whether to appoint the temporary guardian as permanent guardian.
Although each state has
its own laws concerning the appointment of guardians for minors, it is
reasonable to assume that states other than California must have procedures
permitting ex parte applications for the appointment of temporary guardians in
the event of an emergency. The emergency in this context would be that the USCIS
has requested evidence of guardianship for the minor by a certain deadline as
stated in the RFE in connection with the minor’s application to reinstate his or
her F-1 status or to change to F-1 status. It will be well worth the efforts and
time for attorneys practicing in other states to look into the possibility of
obtaining an order appointing temporary guardian to successfully respond to the
RFEs requiring proof of guardianship for the minor-applicant. If it is legally
possible, you will be able to earn a few thousand dollars for obtaining the
guardianship knowing that your response to the RFE armed with an order
appointing temporary guardian for the minor will have a better chance of success
than filing an administrative appeal after the application is
denied.
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