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| DOS cable provides guidance on Student visa issues |
| October 27, 2005 |
The Department of State recently issued a cable providing guidance for consular
officers in how to interpret the immigrant intent provisions when adjudicating
student visa applications. The cable provides that consular officers adjudicating
student visa applications should evaluate the applicant's requirement to maintain
a residence abroad in the context of the student's present circumstances; they
should focus on the student applicant's immediate and near-term intent. We reproduce
below the highlights of the notification:
Residence abroad requirement in general terms
The immigrant intent requirement applies in only certain nonimmigrant visa classifications.
Most of these visa classifications require the visa applicant to satisfactorily
demonstrate that s/he possesses a residence abroad that s/he has no intention
of abandoning. This residence abroad requirement is found in the B, F, J, M, O-2,
P, and Q visa classifications.
Purpose of travel
The purpose of travel is always the controlling criterion for determining a proper
visa classification. Each classification differs fundamentally in terms of activities
permitted and time period contemplated in the United States. Student visa adjudication
is made more complex by the fact that students typically stay in the U.S. longer
than do many other non-immigrant visitors. In these circumstances, it is important
to keep in mind that the applicant's intent is to be adjudicated based on present
intent - not on contingencies of what might happen in the future, during a lengthy
period of study in the United States.
Context of residence abroad for students
While the concept of "ties" is very useful in evaluating many nonimmigrant
visa applicants, it is relatively less useful in assessing the present intent
of a student. The typical student is young, without employment, without family
dependents, and without substantial personal assets. Students may have only general
rather than specific plans for the future. These personal circumstances differ
greatly from those of persons usually qualifying for B-1's or P visas for example.
The residence abroad requirement for a student should therefore be considered
in a broader light, focusing on the student applicants' immediate intent. While
students may not be able to demonstrate strong "ties", their typical
youth often conveys a countervailing major advantage in establishing their bona
fides: they don't necessarily have a long-range plan, and hence are relatively
less likely to have formed intent to abandon their homes.
Intended course of study
The fact that the alien plans on studying a subject for which there is no or little
employment opportunity in his country of residence is not a basis for denying
the visa; because circumstances may change, this fact should not be deemed a negative
factor in adjudicating the case. Nor, on the other hand, is the fact that the
country of residence can provide the equivalent quality courses in the same subject
matter. The student has the right to choose where s/he will obtain an education
if accepted by the school.
Visa renewal during course of study
Some students have to apply for new visas if they go home or travel during their
period of study. Returning student applications should generally be reissued in
the normal course of business, unless circumstances have changed significantly
from the time of previous issuance.
Students should be encouraged to travel home during their studies in order to
maintain ties to their country of origin. If students feel that they will encounter
difficulties in seeking a new student visa or that a visa will not be issued to
them so they can continue their studies, they may be less inclined to leave the
United States during their studies and hence may distance themselves culturally
from their homeland. Posts should facilitate the reissuance of student visas so
that these students can travel freely back and forth between the homeland and
the United States.
Student Visa Reminders
A. Educational qualifications
The I-20 is evidence that the school has accepted the applicant as a student.
The choice of the subject matter is not determinative of the applicant's scholastic
aptitude. Consular officers should not go behind the I-20 to adjudicate the alien's
qualifications as a student for that institution. If the consular officer has
reason to believe that the applicant engaged in fraud or misrepresentation to
garner acceptance into the school, then that information is an important factor
to consider in determining if the applicant has a bona fide intent to engage in
study in the United States.
B. Community colleges or lesser-known schools
All legitimate schools must be accorded the same weight under the law. The INA
does not distinguish among schools qualifying for I-20 authorization based on
size or recognition. There is no legal difference between community colleges,
English language schools and four-year institutions. Applicants should be adjudicated
on their bona fides as students regardless of institution of program of study.
Text of FAM Notes
Residence Abroad Required
The INA requires that the applicant possess a residence in a foreign country he
or she has no intention of abandoning. The regulations require that the consular
officer be satisfied that the alien intends to depart upon termination of student
status. Consequently, the consular officer must be satisfied that the applicant,
at the time of visa application:
- Has a residence abroad;
- Has no immediate intention of abandoning that residence; and
- Intends to depart from the United States upon completion of the course of
study.
Context of Residence Abroad for Student Visas
The context of the residence abroad requirement for student visas inherently differs
from the context for B visitor visas or other short-term visas. The statute clearly
pre-supposes that the natural circumstances and conditions of being a student
do not disqualify that applicant from obtaining a student visa. It is natural
that the student does not possess ties of property, employment, family obligation,
and continuity of life typical of b visa applicants. These ties are typically
weakly held by student applicants, as the student is often single, unemployed,
without property, and is at the stage in life of deciding and developing his or
her future plans. This general condition is further accentuated in light of the
student's proposed extended absence from his or her homeland.
Nonetheless, the consular officer must be satisfied at the time of application
for a visa that an alien possesses the present intent to depart the U.S. at the
conclusion of his or her studies. That this intention is subject to change or
even likely to change is not a sufficient reason to deny a visa.
Relationship of Education or Training Sought to Existence of Ties Abroad
The fact that a student's proposed education or training would not appear to be
useful in the homeland is not, in itself, a basis for refusing an f-1 or m-1 visa.
This remains true if the applicant's proposed course of study seems to be impractical.
For example, if a person from a developing country may wish to study nuclear engineering
simply because he enjoys it, he may no more be denied a visa because there is
no market for a nuclear engineer's skills in his homeland than he may be denied
a visa for the study of philosophy or Greek simply because they do not lead to
a specific vocation.
Availability of Collateral Academic Education in the Applicant's Homeland
The fact that education or training similar to that which the applicant plans
to undertake is apparently available in the home country is not in itself a basis
for refusing a student visa. An applicant may legitimately seek to study in the
United States for various reasons, including a higher standard of education or
training. Furthermore, the desired education or training in the applicant's homeland
may be only theoretically available; openings in local schools and institutions
may be already filled or reserved for others.
Conclusion
The cable advises the consular officers that student visa applications must be
adjudicated in the proper context, a long view. The officers must assess the residence
abroad requirement focusing on whether the applicant intends at the time of applying
for the visa to abandon his or her residence abroad. In evaluating this intent,
relatively little weight can be given to the traditional "ties" that
are more useful in adjudicating applications for B visas.
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