Advisory On New INS Rules To Restrict Visitors And Students
On April 12, 2002, the INS published two rules in the Federal Register. Requiring Change of Status From B to F-1 or M-1 Nonimmigrant Prior to Pursuing a Course of Study and Limiting the Period of Admission for B Nonimmigrant Aliens
Prohibiting Study before Change of Status is Granted
The first, an interim final rule, prohibits nonimmigrants admitted in B-1 or B-2 status in pursuing a course of study prior to obtaining approval of a change to F-1 or M-1 student status (Fed. Reg. 18062). This rule is effective as of April 12, 2002. Written comments must be submitted on or before June 11, 1002.
B-1 or B-2 nonimmigrants who have already been admitted in this status prior to April 12, 2002, will not be covered by this rule. This rule will also not be applicable, even prospectively, to nonimmigrants in other visa statuses (such as H-1B, H-4, F-2 etc.) who file an application for change of status to F-1 or M-1.
Limiting B-1 and B-2 Visa Admissions
Also, on April 12, 2002, INS published in the Federal Register a proposed rule limiting the period of admission for B nonimmigrant aliens (Fed. Reg. 18065). This rule is not effective immediately, and written comments must be submitted on or before May 13, 2002.
A B nonimmigrant is admitted temporarily into the US for business (B-1) or pleasure (B-2). Existing INS regulations at 8 CFR 214.2(b)(i) provide that a B-1 or B-2 visitor may be admitted for a period of not more than 1 year.
Under 8 C.F.R. § 214.2(b)(2), a B-2 visitor is admitted for a minimum period of six months, regardless of the time actually needed to remain in the US. B nonimmigrants may request extensions beyond the initial period of admission by filing Form I-539, Application to Extend/Change Nonimmigrant Status.
The proposed rule will eliminate the minimum period of six months for a B-2 nonimmigrant for pleasure. In its place, B-1 and B-2 visitors will be admitted for a period of time that is fair and reasonable for the completion of the purpose of the visit.
The proposed rule states that extensions may be granted in increments of not more than six months. Thus persons admitted for 30 days can potentially extend their stay for an additional six months. (Corrected 4/17/02). Inspecting INS officers at ports of entry will grant the period of admission based on the applicant's actual need to remain in the US. If the visitor does not request an actual period of time, the INS will admit the visitor for a period of not more than 30 days.
It is therefore up to the visitor to convince the INS inspecting officer to grant more than 30 days. The rule advises that inspecting Service officers will make every effort to take into account language and cultural differences when eliciting the information needed to determine the length of stay in the US. This, however, could result in increasing delays at airports.
Criteria for Extensions
Under the proposed rule B visitors will continue to be eligible to apply for extensions of stay in the US, upto a maximum period of six months under the following circumstances:
Filing Change of Address Requirement
The preamble further suggests that a visitor who remains in the US for a period of 30 days or more should inform the INS of each change of address within 10 days of such change, by submitting Form AR-11. § 265(a) of the INA has always required a noncitizen to file a change of address, but this provision has rarely been invoked by the INS before.
Prospective Students Must Declare Intention to Study
An ancillary proposal under this rule is that B visitors who ultimately wish to change to F or M nonimmigrant visa status in the US must have stated such an intent to an INS officer at the time of admission. Inspectors will be required to note "Prospective Student" on the I-94 form. This rule will also apply to Canadian citizens and certain Canadian permanent residents who are generally not required to obtain a nonimmigrant visa to enter the US. After the rule is implemented, a Canadian student would also have to declare his or her intention to visit schools in the US.
Rule's Impact on Families and Business
The proposed rule, once it takes effect, will have the greatest impact on relatives of immigrants who are planning to spend more than 30 days in the US. This is generally the case with parents of immigrants who spend several weeks, especially during the summer, with their US-based children. Many relatives also come to the US to be present for the birth of a grandchild. Since immigrant visa sponsorship for spouses and children can take years to materialize, many spend substantial amounts of time, albeit temporarily, with their US-based relatives. Furthermore, employees of foreign companies enter the US to conduct legitimate business activities on behalf of that company in the US for a few months.
When this proposed rule becomes effective, and a period of time beyond 30 days is required, the visitor should specifically ask for it to the INS inspecting officer at the port of entry. If possible, one should also carry documentary evidence establishing the need for more time. If this is not successful, the visitor may extend status under the aforementioned criteria.
The rule will also burden the INS with unnecessary extension applications. Due to a shorter window of time, fewer people may have the ability to change status in the US. If one does file an application to change status to a work visa in less than 30 days, there is a greater possibility for the INS to infer that the individual's motives to enter on a B visa were not genuine.
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is a trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or firstname.lastname@example.org