Born and raised in Mongolia, forty-five-year old Kushi had always dreamed of a better life for herself. Part of that dream involved coming to America to continue her education in accounting. From 2003 to 2006, Kushi attended school in the U.S. pursuant to an F-1 student visa. But on September 26, 2006, she returned to Mongolia to be with her ailing father, who died approximately two weeks after her arrival.

Prior to leaving the United States, Kushi received a signed form I-20 from Strayer University, which is the form confirming her enrollment in the Master's degree program in accounting from January 10, 2006 to January 9, 2008. But unfortunately, Kushi's F-1 visa stamp had expired, forcing Kushi to re-apply for a new F-1 student visa around the beginning of November, 2005, at the U.S. Consulate in Ulaanbaatar. The Consulate surprisingly rejected her application, and she was informed by the consular officer that she would not be getting a new student visa or any other visa to return to the United States.

Boldly, Kushi decided to return to the U.S. to gather her belongings (which she had left behind in September during her rushed journey home to see her father before he passed away), and inquire with her school as to why she had been denied at the Consulate. Kushi arrived in the United States on her valid B-2 visa on December 24, 2006. Upon arrival, she informed the CBP officer that she was in the U.S. for the holiday to gather her belongings, see some friends, and inquire with her school about her student visa. The Officer then sent her to secondary inspection. When the secondary inspection officer called her, she sat down in front of him and produced her I-20 along with a letter from Strayer University. The officer quickly reviewed the documents and said, "It's good enough. Good luck with school. Congratulations." At that point, CBP admitted Kushi as an F-1 Student.

Relying on the CBP officer's erroneous re-determination of her status, Kushi sought to re-enroll in school. Because she did not have a current F-1 visa in her passport—just her I-94 Arrival/Departure Card —her school's International Student Affairs Office sought guidance from the Vermont Service Center, and from the SEVIS Help Desk. The Vermont Service Center advised the school that Kushi was in the United States pursuant to a valid B-1/B-2 visa, her I-94 notwithstanding. Kushi then sought the assistance of Holland & Knight's Community Services Team, who advised and assisted Kushi in filing an I-539 Application to Change/Extend Nonimmigrant Status from B-1/B-2 visitor to F-1 student.

Despite the pendency of this application, confusion persisted and Kushi was anxious to return to school. This is when Kushi's problems really began. Kushi scheduled an Infopass appointment at the Washington District Office to speak with an Immigration Officer about her application for March 21, 2007. The Immigration Information Officer with whom she initially met was perplexed, and referred her to a USCIS District Adjudications Officer who after listening to Kushi's story, proceeded to scold her for applying for a visa which she purportedly already has. Additionally, the officer instructed Kushi to withdraw her I-539 Application to Change/Adjust Nonimmigrant Status. Quickly drafting by hand, Kushi submitted a withdrawal request on the spot. After withdrawing her I-539 Application to Change/Extend Nonimmigrant Status, Strayer informed Kushi that it could not issue her a new I-20.

Having been told less than a month before by an Immigration Officer that she was in valid F-1 status, Kushi was completely taken aback, and scheduled yet another Infopass appointment. At this Infopass appointment on April 20, 2007, Kushi was informed that she was not in F-1 status. When Kushi asked whether she could continue attending school, the Officer told her that she was in B-1/B-2 status, and would consequently have to stop going to school.

Community Service Team, Senior Counsel, Christopher Nugent reached out to Congresswoman Eleanor Norton Holmes who submitted a Congressional Inquiry on Kushi's behalf, revealing that the Department of Homeland Security erred in admitting Kushi as an F-1 student, rather than a B-1/B-2 visitor and also erred in advising Kushi to withdraw the I-539, which subsequently caused Kushi's status to lapse. Initially, USCIS's stance was that Kushi would need to return to Mongolia, reapply for a student visa, and then fly back to the United States. But Chris Nugent advised against this, knowing that because Kushi lacked status, her departure would ostensibly trigger a 10-year bar on reentry. Chris and his team drafted an equitable estoppel argument, stating that because Kushi's status lapsed at no fault of her own, and because of the affirmative actions of the government, the government should be "estopped" from taking any negative actions against her.

This argument was sent to the District Director of the USCIS Washington Field Office, and requested reinstatement of Kushi's B-1/B-2 status, plus reopening her application to change status to an F-1 student visa. Based on this request, Kushi's application to change status was reopened and has been approved. She recommenced her studies at Strayer University in the spring of 2009.

Holland + Knight Community Services Team

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