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New Regulations for B Visa Holders and Their Impact on International Students
by Ellen H. Badger

On April 12, 2002, the U.S. Immigration and Naturalization Service (INS) published both an interim rule and a proposed rule that changes the current regulations governing the B non-immigrant status (B-1 visitor for business and B-2 visitor for pleasure). According to the INS, the proposed changes are part of a strategy to improve national security, and lessen the probability that visitors will establish permanent ties in the Untied States and thus remain in the country illegally.

Should international students and scholars who are in F or J status be concerned about changes to the B visa category? Absolutely! If you have friends or family who plan to visit the United States as tourists, these new and proposed regulations may have an impact on them. Later on in this article, we'll also look at some special circumstances for certain B visa holders that the interim and proposed regulations do not address.

There are two rules; the first is an interim rule that took effect immediately upon publication on April 12, 2002. The other is a proposed rule that will not take effect until after the comment period ends and the INS publishes a final rule. So, we will discuss them separately.

The Interim Rule: (this rule took effect on April 12, 2002)

This rule prohibits individuals in the United States in either B-1 or B-2 status who wish to apply for a change of status to F-1 (student) or M-1 (vocational student) from enrolling in school for full-time study until the INS approves the change of status application. To facilitate the change of status application process, the INS has set a target processing time of 30 days for all requests to change or extend non-immigrant status, with all four service centers achieving that target within the next sixty days.

This rule only applies to B non-immigrants who entered the United States in B-1 or B-2 status on or after April 12, 2002. It does not apply to B non-immigrants who entered the United States before April 12, unless they apply to have their B status extended on or after April 12. 2002.

Practical Advice on the Interim Rule: The interim rule only applies to those in B non-immigrant status who apply for a change of status to F-1 or M-1. The rule does not apply to those in other non-immigrant statuses (such as H-1B, F-2, H-4 or other dependents) who apply for a change of status to F-1 or M-1. However, someone who is in B-1 or B-2 status entering the United States on or after April 12, 2002 who might be interested in full-time study and wishes to become F-1 or M-1 will not be able to enroll in school until their change of status application is approved. In fact, it is the experience of Binghamton University's ISSS that very few individuals in B-1 or B-2 status tend to apply to the INS for a change of status to F-1, since the application denial rate is generally high.

The Proposed Rule: (published April 12, 2002, does not take effect until after a 30-day comment period has passed and the INS publishes an interim or final rule).

The proposed rule contains some provisions that are very controversial, and has caused much comment in the media.

The provision that has generated the most comment would eliminate the current six month admission period for B-2 visitors, and instead base admission on the period of time needed to accomplish the purpose of the visit (in most cases, thirty days). The visitor would have to explain to the INS inspector why there is a need for a stay longer than thirty days. The INS believes that nearly all visitors with legitimate tourism or business interests should be able to conclude their stay within a reasonable admission period (thirty days to a maximum of six months).

Further, the proposed rule would reduce the maximum initial admission period for all B-1 and B-2 visitors from one year to six months, limit the conditions under which a B-1 or B-2 visitor could apply for an extension, and reduce the maximum length of that extension.

Finally, the proposed rule would prohibit individuals in B-1 or B-2 status from changing to F-1 or M-1 student unless they state to the U.S. immigration inspector at the time of entry to the United States their intention to be a student.

Practical Advice on the Proposed Rule: The most important advice to offer is that the provisions of the proposed rule are not yet law. However, if the rule becomes law, the burden will fall on the B visitor to explain to the U.S. immigration inspector at the time of entry into the United States the purpose of his or her visit and how long a stay is needed. This is likely to create difficulties for visitors who may not be proficient in English. Therefore, it will be a good idea for the visitor to carry written evidence of the need for a stay of greater than thirty days, if appropriate. Examples of such evidence might include a letter written in English by the U.S. host indicating the duration and purpose of the visit. In the case of a grandparent assisting in the care of a newborn, a letter from the health care provider verifying the pregnancy or the birth would also be helpful. Such documents would be given to the immigration inspector along with the passport. If the INS inspector cannot determine the time needed to accomplish the visit, the inspector will grant only a thirty-day period of admission.

The proposed rule will not affect individuals already in the United States in B-1 or B-2 status at any time prior to the effective date of a final rule, except for those who file for an extension of stay on or after the effective date. Those individuals will then be subject to the heightened requirements for extension of stay as well as the six month limit on such extensions.

The proposed rule will allow B visa holders to extend their stay for a maximum of six months, but only in cases that have resulted from unexpected events or compelling humanitarian reasons. In addition, the proposed rule defines other exceptions where a B visitor may need longer than six months. Here are the circumstances, as stated in the proposed rule, for which the INS will grant an extension of stay:

  • unexpected circumstance beyond the individual's control which prevents the individual from departing the United States at the conclusion of the period of admission as indicated on the I-94 card (this would need to be a documented and significant event)
  • compelling humanitarian reasons, including but not limited to situations involving the individual's new or continued medical treatment, the need of a foreign national parent to stay with his or her minor child (under age 21) receiving medical treatment or specialized education in the United States), or the need of an adult to attend to an acutely ill immediate family member who is receiving medical treatment
  • the individual is a member of a religious denomination coming solely and temporarily to do missionary work in behalf of that religious denomination, provided that the work does not involve the selling of articles or the solicitation or acceptance of donations
  • the individual is establishing a new office relating to intra-company transfers (L visa)
  • the individual is the personal or domestic servant of an alien or U.S. citizen
  • the individual is an employee of a foreign airline engaged in international transportation of passengers or freight
  • the individual owns a home in the United States and occupies the home on a seasonal or occasional basis only.
Missing from the above list is any mention of foreign national parents coming to the United States for a long visit, or to assist their adult children with the birth of a baby or provide child care.

The proposed rule would also establish new requirements for B visa holders who wish to become students. An individual admitted in B status would be able to file for a change of status to F-1 or M-1 student only if they state their intent to study in the United States at the time they are inspected at the U.S. port of entry. Immigration inspectors will be required to note that the individual is a prospective student and make the appropriate notation "prospective student" on the student's I-94 arrival/departure card. An individual in B status who applies for a change of status to F-1 or M-1 student without the phrase "prospective student" on the I-94 card will have the application denied. This portion of the rule will only affect individuals who enter the United States in B status after the final rule's effective date. In addition, It does not apply to individuals in other non-immigrant statuses (such as H-1B, F-2, H-4 or other dependents) who wish to apply for a change of status to F-1 or M-1.

Unintended Consequences of the Proposed Rule:

As mentioned earlier in this article, the INS's proposed rule significantly narrows the circumstances for which extensions of stay will be approved. Missing from the list is a provision for foreign parents visiting their adult children for a period of several months, especially in the case of foreign parents providing long-term child care for their adult children.

The proposed rule will likely burden the INS with a high number of B-1 and B-2 extension applications, which were unnecessary under the current rule. It also does not take into account certain categories of individuals who are currently eligible for B-1 or B-2 status for long stays, including fiancÚ(e) of non-immigrants in the United States and co-habitating partners and extended family members (including elderly parents) of non-immigrants in the United States. A partner can refer to someone of the same or opposite sex of the non-immigrant. Currently, co-habitating partners and extended family members can request one-year stays at the time they enter the United States and file extensions of stay in increments of six months for the duration of the principal non-immigrant's stay in the United States. Under the proposed rule, this will no longer be possible.

If You Want to Comment on the Proposed Rule:

The INS is accepting written comments on the proposed rule until May 13, 2002 (comments must be received by that date). Anyone can write a comment, this is not limited solely to U.S. citizens.

If you would like to write regarding the proposed rule, address your letter to:

Director
Regulations and Forms Services Division
Immigration and Naturalization Service
425 I Street, NW, Room 4034
Washington, DC 20536

To ensure proper handling, please reference the INS No. 2176-01 on your correspondence.

In Closing:

Remember that the most controversial parts of the new B regulations are contained in a proposed rule that is not yet law. When the final rule is published by the INS, it will be announced in ISSS-BU.

Resources and references: (cut and paste the references into your web browser)

To read the interim rule as published in the April 12, 2002 Federal Register, (a four-page pdf file) go to: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2002_register&docid=02-8926-filed.pdf

To read the proposed rule as published in the April 12, 2002 Federal Register, (a five-page pdf file) go to: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2002_register&docid=02-8927-filed.pdf

To read a practice advisory published by NAFSA: Association of International Educators, on both the interim and proposed rules, go to: http://www.nafsa.org/content/ProfessionalandEducationalResources/Immigration
AdvisingResources/pa2002C.htm

To read a clarification published by the INS regarding the proposed rule, go to: http://www.ins.usdoj.gov/graphics/publicaffairs/statements/clarifyrules.htm

To read an INS news release on the interim and proposed rules, go to: http://www.ins.usdoj.gov/graphics/publicaffairs/newsrels/visa.htm

To read an INS fact sheet on the interim and proposed rules, go to: http://www.ins.usdoj.gov/graphics/publicaffairs/factsheets/visafact.htm


About The Author

Ellen H. Badger is the director of International Student and Scholar Services at Binghamton University, State University of New York. She directs programs and services for more than 900 international students and scholars.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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