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US: F-1 visa guidance wording tightened

The official direction for consular officers considering F-1 visa issuance to students applying to study in the US has been tightened – in terms of the language used around establishing ties abroad.

A hackathon in New York. Photo: Flickr/Matylda Czarnecka

"This will directly impact the processing times and success rates of getting student visas"

This has lead to some concerns that it may translate into less fluid visa application into the world’s biggest international student market.

To be admitted with F-1 nonimmigrant status, “a foreign national must show that they have a foreign residence which they do not intend on abandoning”.

In August 2017, the US Department of State amended 9 FAM 402.505(E)(1) “Residence Abroad Required”, to now include the following provision:

Examining Residence Abroad: “General rules for examining residence abroad are outlined in 9 FAM 401.1-3(F)(2).  If you are not satisfied that the applicant’s present intent is to depart the United States at the conclusion of his or her study or OPT, you must refuse the visa under INA 214(b).”

The wording continues: “To evaluate this, you should assess the applicant’s current plans following completion of his or her study or OPT.  The hypothetical possibility that the applicant may apply to change or adjust status in the United States in the future is not a basis to refuse a visa application if you are satisfied that the applicant’s present intent is to depart at the conclusion of his or her study or OPT.”

“F-1 students will certainly be under more scrutiny now as a result of this policy”

Since 2005, the requirement to demonstrate a foreign residence been applied more loosely than it was previously due to the 2005 State Department Cable.

This provided some language that stated that the residence abroad requirement for a student should not be exclusively connected to ties and the focus should be on “the student applicant’s immediate intent” because “students’ typical youth often means they do not necessarily have a long-range plan, and hence are relatively less likely to have formed an intent to abandon their homes.”

Could the amended regulation affect future adjudications for F-1 visas?

“From the legal perspective, no law has changed,” said Anastasia Tonello, managing partner of Laura Devine Attorneys LLC in New York and a Partner of Laura Devine Solicitors in London and president-elect of the American Immigration Lawyers Association.

“It’s Foreign Affairs Manual guidance to consular officers who now have power to do through the Foreign Affairs Manual what they’ve probably been doing always,” she continued.

However, the amendment may be a concern for those in the international enrolment sector about the message this sends about welcoming international students and immigrants to the United States.

“I think that this is another example of the shift in policies that the [Trump] administration is encouraging to make immigration more difficult,” said Tonello – and international enrolment experts agree.

“At its core, the amendment is about tightening the future immigration through education pathways,” asserts Rahul Choudaha, executive vice president of global engagement and research at StudyPortals, an online search platform for international students.

“This will put more burden and pressure on the students to prove that do not intend to stay in the US after the competition of their studies or optional practical training [OPT]. Likewise, consular officers are likely to take longer and become stricter in rejecting the cases. This will directly impact the processing times and success rates of getting student visas.”

John Eriksen, director of international admission at Bryant University in Rhode Island, commented, “F-1 students will certainly be under more scrutiny now as a result of this policy and it might make OPT even less available if they decide to go home. “

Bryant University has already been advising international students interested in OPT to not leave the country after graduating from the university.

“We have heard of incidents that students were stopped at the port of entry from returning back for the OPT,” Bryant explained.

Experts note that US higher education institutions may want to provide more guidance to prospective international students in light of the amendment.

“This also means that institutions must do more to help students understand the importance of proving a clear non-immigrant intent,” advised Choudaha.

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