INS Publishes Final Rule For Overhaul Of Foreign Student Visa Regulations
Students wishing to participate in a course of study in the United States may obtain an F-1 visa from the US consulate abroad. Students seeking to participate in a vocational educational program may apply for an M-1 visa. A J-1 visa is available for certain exchange visitors and trainees.
In order to be granted such a student visa, the student and the school must satisfy certain requirements, which are discussed below. The INS recently instituted a new record-keeping system, the Student and Exchange Visitor Information System (SEVIS) for the collection of information on students and for tracking students while they are in the United States. The SEVIS system alters the procedures for obtaining a student visa and the recent SEVIS regulations clarify and amend certain rules and requirements for student visa holders. The SEVIS system is discussed in detail below.
Requirements for F-1 Visas
An applicant for an F-1 student visa must show a “nonimmigrant intent,” in other words, the student must intend to return to his or her home country following the course of study in the United States. The student must have a foreign residence that the student has no intention of abandoning. The student must also show access to sufficient funds to cover expenses while studying in the US. In addition, the student must be a bone fide student coming to the United States to pursue a full course of study.
The law does not allow a foreign student to attend public elementary school. A student may attend public secondary school, but not for more than 12 months and the student must reimburse the school board for the full cost of the education.
The sponsoring school must be qualified, by approval of the INS, to sponsor foreign students. For a school to become qualified to participate in the F-1 process, it must 1) demonstrate that it is a legitimate educational institution, 2) appoint a designated school official (DSO) who will sign all necessary forms, 3) institute a record keeping and reporting system satisfactory to the INS. The new SEVIS system standardizes the reporting system and provides specific requirements for sponsoring schools.
The SEVIS System
SEVIS is an internet-based reporting system that provides both the INS and the school with access to accurate and current information on nonimmigrant foreign students, exchange visitors, and their dependents. SEVIS was implemented on a voluntary basis in July 2002 and will be mandatory for all sponsoring schools by January 30, 2003. SEVIS will be accessible by the INS, the Department of States, certified schools and exchange program sponsors. SEVIS will be utilized for visa-issuance and for tracking students for the entire period of study. The specifics of SEVIS are discussed in detail below.
For a foreign student to obtain F-1 status he or she must first receive a SEVIS Form I-20 issued by the school that provides information about the school and the student. (Students seeking admission prior to August 30, 2003 may present a non-SEVIS Form I-20 issued prior to January 30, 2003.) Before the school can issue an I-20 the following conditions must be met:
• The student must have made a written application to the school
• The school must have received the student’s academic record and evidence of financial support
• The student must meet the school’s qualifications for admission, including any English language proficiency
• The student must have been accepted by the school
The student must bring the I-20 to the consulate and apply for an F-1 visa. At that time, the student must show a valid passport, pay the required application fee and show a nonimmigrant intent as well as evidence of financial support in the amount indicated on the I-20.
Once the student is issued a visa, the student may make an application for admission at a US port of entry. The student must present their passport, visa, evidence of support and the I-20. If admission is granted, the INS will keep one copy of the I-20 and return the second to the student. The student is issued an I-94 Arrival/Departure Record that contains a unique control number. This number is noted on the I-20, and becomes a sort of permanent identifier.
Schools will use SEVIS for the tracking of extensions, transfers, authorized employment, and reduction in course loads. The school is required to update SEVIS with the following information:
• A student’s enrollment at the school;
• The start date of the student’s next term or session;
• A student’s failure to enroll;
• A student dropping below a full course of study without prior authorization by the DSO;
• Any other failure to maintain status or complete the program;
• A change of the student’s or dependent’s legal name or address;
• Any disciplinary action taken by the school against the student as a result of the student being convicted of a crime; and
• A student’s graduation prior to the program and date listed on the Form I-20
Schools must update SEVIS with the current address and current academic status of foreign students. In addition, within 21 days of a change in the name, address or curriculum of a school, the school must update SEVIS with the new information.
Students are required to notify the school and the INS of any legal change of his or her name and any change of address within 10 days of the change. Notice to a school with SEVIS constitutes notice to the INS.
II. NEW REGULATIONS AND CHANGES AFFECTING FOREIGN STUDENTS
On December 11, 2002, the INS published the final rules for changes to the regulations affecting foreign students (67 Fed. Reg. 76256). The final rule maintains most of the provisions set forth in the proposed rule published on May 16, 2002 (67 Fed. Reg. 18065) and is effective on January 1, 2003.
Spouses and children
The final rule requires spouses and children of F-1 and M-1 students to present an original SEVIS Form I-20 issued in the name of each F-2 or M-2 dependent. Therefore, an F-2 spouse will no longer be permitted to enter the United States by presenting a copy of the F-1’s I-20. In response to comments, the INS changed the final rule to allow a dependent to enter the US using the I-20 of the F-1 or M-1 until August 1, 2003, but only in “exigent circumstances.”
Under the final rule, F-2 and M-2 spouses and children are prohibited from engaging in full-time study (except for a child in kindergarten through twelfth grade), but may engage in study that is “avocational or recreational in nature.” The final rule also includes a provision permitting current F-2 and M-2 spouses and children engaged in full-time study before January 1, 2003 to continue such study, but requiring an application for change of status to be filed by March 11, 2003.
Reduction of Student Course Load
The final rule maintains the proposed rule’s provisions on reduction in course load. The final rule clarifies that an F-1 student is only permitted to drop below a full course of study for academic reasons once. There will be no second authorization of a request to reduce course load based on academic reasons, but the student remains eligible to reduce his or her course load based on illness.
For reductions in course load due to medical reasons, the final rule allows a student to present documentation from a medical doctor, doctor of osteopathy, or licensed clinical psychologist. A reduction in course load for medical reasons will only be permitted for an aggregate of 12 months (5 months for M-1 students) while the student is pursuing a course of study at a particular program level. There is no limitation on the number of times that a student can reduce his or her course load, only on the period of time for which it is reduced.
The final rule includes an amendment to the transfer provisions not found in the proposed rule. An F-1 student who is maintaining status may transfer to another school, but only if the student will begin classes at the transfer school or program within five months of transferring out of the current school or within five months of completion date on the I-20, whichever is earlier.
A student may apply for employment authorization to engage in optional practical training up to 90 days before the end of one full academic year of study. However, the period of employment may not begin until after the academic year is completed. Pursuant to the final rule, a student must apply for optional practical training prior to the completion of the course requirements for a degree or prior to the completion of a course of study.
The final rule clarifies that practical training is available to F-1 students who were involved in a study abroad program during their course of study at an approved school. The time spent abroad after the student has begun attendance at the school, should count towards the 9 consecutive months required to apply for practical training.
The rule also clarifies that an F-1 student may be authorized for up to 12 months of practical training for each program level that he or she undertakes. For example, a student who has engaged in 12 months of practical training during study for an undergraduate degree becomes eligible for another 12 months of practical training when he or she changes to a higher educational level, such as a master’s degree.
In response to comments, the final rule uses the term “one full academic year” instead of “nine consecutive months” for purposes of the practical training provisions. This change simplifies the terminology and accommodates schools that do not operate on a standard nine-month calendar.
The final rules includes a new provision requiring students to report any change of name or address or interruption in employment to the designated school official (DSO) during the period of optional practical training. The DSO, in turn, is required to report any such changes.
Reinstatement to Student Status
If a student has failed to maintain status, he or she may reinstate status, pursuant to certain requirements. The final rule requires the student to show following:
(A) Has not been out of status for more than 5 months (or demonstrates that the failure to file within the 5 month period was the result of exceptional circumstances and that the student filed the request for reinstatement as promptly as possible);
(B) Does not have a record of repeated or willful violations of INS regulations;
(C) Establishes to the satisfaction of the INS, by a detailed showing, either that:
(D) Is currently pursuing, or intending to pursue, a full course of study in the immediate future at the school which issued the Form I-20 A-B;
(1) the violation of status resulted from circumstances beyond the student’s control. Such circumstances might include serious injury or illness, closure of the institution, a natural disaster, or inadvertence, oversight, or neglect on the part of the DSO, but do not include instances where a pattern of repeated violations or where a willful failure on the part of the student resulted in the need for reinstatement; or
(2) the violation relates to a reduction in the student’s course load that would have been within a DSO’s power to authorize, and that failure to approve reinstatement would result in extreme hardship to the student;
(E) Has not engaged in unauthorized employment; and
(F) Is not deportable on any ground other than section 237(a)(1)(B) or (C)(i) of the Act (relating to being present in the US in violation of the immigration laws).
The final rule also changed the proposed rule to include inadvertence, oversight or neglect on the part of the DSO to the list of circumstances beyond the student’s control that might have led to a violation of status. This is a welcome change from the proposed ruled, which specifically stated that such circumstances were not considered beyond the control of the student.
Grace Periods Before and After the Program
The final rule limits the period of time a student may be admitted to the United States prior to the beginning of a program. An F-1, J-1 or M-1 student may enter the US 30 days prior to the beginning of the course of study. Following completion of the program, an F-1 student is allowed to stay in the US for 60 days to prepare for departure. This grace period does not apply to a student who fails to complete a course of study or fails to maintain status. An F-1 student who has been authorized by the DSO to withdraw from classes is permitted 15 days to leave the US.
A J-1 or M-1 student is allowed 30 days after the completion of the course of study in which to prepare to leave the US. An M-1 student may not exceed a total of one year in the US. As with the other student visas, a J-1 or M-1 student who fails to maintain status is ineligible for the 30-day grace period to depart the US.
In response to comments regarding students who are unable to receive mail at an actual physical address, such as boarding students in secondary schools, the final rule allows for the student to provide a mailing address and requires the school to maintain a record of the actual physical address of the student.
Administrative Correction of Record
Many commentators expressed concern about possible technical or computer errors that could have an adverse impact on the status of foreign students under strict reporting requirements of the SEVIS system. In response, the INS added 8 C.F.R. §214.3(g)(4) to allow a DSO to request a SEVIS administrator to correct an error in a student’s record, without fee.
About The Author
Christina LaBrie is an associate attorney at Cyrus D. Mehta & Associates, PLLC. She received her J.D. from the New York University School of Law in 2000. Prior to joining the firm, she practiced immigration law, representing primarily asylum applicants before Immigration Courts, the Board of Immigration Appeals and federal courts.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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