Citations for ILW.COM's Seminar
Students: F, J, and M
Session 3 held on October 15, 2009
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From Steve Springer
I. (GS) SEVIS and travel, visa acquisition, and change of status, including recent developments concerning SEVIS
II. (LG) (1) Travel, the necessary documents and "authorizations"
(2) Visa acquisition
III (SS) Change of status to/from F, M, or J
I. COS to F/J/M
A. Application and documents:
- Timing, documents, plans, and overcoming INA 214(b)
- Recent DOS cables, adjudications, and indications from consular officials
- Security checks and delays
- Third-country-national visa processing in Canada and Mexico (including INA 222(g))
B. Possible issues and strategies
a. On the basis of 8 CFR 214.2(f)(5)(i) [F-1 student may be admitted up to 30 days before I-20 "report date"], USCIS requires COS applicant's current status to end no sooner than 30 days prior to I-20 report date
b. For example, if B-2 status ends 7/15 and I-20 report date is 9/1, USCIS will deny COS (more than 30-day gap); if B-2 status ends 8/15 and I-20 report date is 9/1, USCIS will not deny for this reason (less than 30-day gap)
c. Often USCIS processing delays cause report date to pass before COS approval, and DSO must defer report date in SEVIS (USCIS may send RFE if DSO hasn't done so)--See 8/20/09 VSC Stakeholder Meeting Report, AILA doc. 09090265
d. If current status expires so soon to create 30-day (+) gap, travel and re-entry may be best option
e. Consider extension of current status before filing COS if appropriate/allowable
f. Will DHS continue to consider applicants with timely-filed and nonfrivolous COS application to be in a period of authorized stay after old status expires but while awaiting COS? Unlawful presence tolls (INA 212(a)(9)(B)(iv), and INS guidance was that such a person was not maintaining status but was in a period of stay authorized by the attorney general, but what will USCIS, ICE and CBP do?
- See Memo from Thomas Cook, 3/27/2003, forwarding memo Janice Podolny, "Interpretation of 'Period of Stay Authorized by the Attorney General' in determining 'unlawful presence' . . .," AILA doc. 03042140
- See also Danielle Rizzo's "Is My Client In A Period Of Stay Authorized By The Attorney General? It Depends On Who You Ask!" at http://www.ilw.com/articles/2009,0120-rizzo.shtm
2. COS from B to F/J/M especially problematic
a. Preconceived intent and 30/60 day rule
- 9 FAM 40.63 N 4.7 provides that filing AOS application or failure to maintain status within 30 days of entry carries presumption of misrepresentation (fraudulent failure to disclose preconceived intent). Something like rebuttable presumption 30 - 60 days. After 60 days no presumption.
- DHS regs. and guidance don't provide any such presumption. USCIS I-539 SOPs (AILA doc. 07090760) state only that an adjudicator must "consider intent issues when a B-2 nonimmigrant is changing to another classification" (p. 72)
- Court held in Bitar v. United States, 582 F. Supp 417 (D Colo. 1983), citing Sanghavi v. United States, 614 F. 2d 511 (5th Cir. 1980) that rapid sequence of events following entry into U.S. may demonstrate preconceived intent and misrepresentation.
- Long-held wisdom of the field is that USCIS does/may apply the DOS standard to COS, so probably good rule of thumb to provide very good explanation of change of intent if COS application soon after entry as B.
- Often processing times, intent issues, etc. will lead potential COS applicant instead to travel, obtain visa, and re-enter
- Can avoid problem by obtaining "Prospective Student" notation on B visa (see 9 FAM 41.61 N 16.2)--different for Fs and Ms, see FAM
- Proposed rule [67 Fed. Reg. 18065 (April 12, 2002)] would have made COS from B to F or M impossible unless visa or I-94 carried "prospective student" notation -- proposed rule later withdrawn, but some DSOs/others may not know
3. Additional restriction on COS to M-1
- Cannot be granted COS to M-1 to pursue course of study "solely in order to qualify for a subsequent change of nonimmigrant classification" to H-1B
C. Restriction on study for Bs, F-2s
- No restriction on study as a secondary activity for any classifications except B and F-2.
- Since 2002 "enrollment in a course of study prohibited" for B-1s and B-2s. 8 CFR 214.2(b)(7). Filing COS application requesting F/M status does not allow enrollment while awaiting approval; must wait for approval. What about while awaiting COS to J? Not addressed in reg.
- What's "a course of study"? In short, studies that are more than avocational or recreational in nature. See Williams Memo AILA Doc. No. 02041532
- "F-2 spouse . . . may not engage in full-time study, and the F-2 child may only engage in full time study" if it's K-12. Both may engage in avocational/recreational study. 8 CFR 214.2(f)(15(ii)(A)-(C).
- However, "except [for B-1s/B-2s], a nonimmigrant applying for a change of classification as an F-1 or M-1 student is not considered ineligible solely because the applicant may have started attendance at school before the application was submitted." 8 CFR 248.1(c)(1)
D. COS from F/J/M
1. Special restrictions on M-1s
a. COS from M-1 to F-1 not possible (8 CFR 248.1(c))
b. Prohibited from changing status to H-1B if education/training gained through M program prepared student to meet H-1B criteria (8 CFR 248.1(c))
2. Grace periods and change of status
- From time to time (such as at NAFSA L.A. conference) USCIS officials will indicate that COS not possible in F 60-day/J 30-day grace period (15 days for F-1 drop-outs -- see 8 CFR 214.2(f)(5)(iv). Experience of most practitioners is that they are approved. I-539 SOPs suggest application filed during grace period is timely-filed. 8/8/2004 Yates memo (AILA doc. 04081167) confirms this in reference to H-1B quota. Probably best to advise clients that filing during grace period increases risk of denial.
- Remember, Ms are not admitted for "D/S" like Fs and Js, but are admitted for specific period (date-specific I-94) -- so no grace period (may overstay and accrue unlawful presence and be subject to 222(g) and 212(a)(9)(B))
3. Two year home residence requirement and change of status
- Remember, the prohibition on COS for Js (other than medical) subject to 212(e) found at 8 CFR 248.1(d) applies only to persons "classified" as Js, so--for example--an F-1 student who was previously a J and is subject to 212(e) is eligible for COS. Of course, careful analysis goes into whether it makes sense (for example, COS to H-1B but no possibility of H-1B visa, etc.).
IV. (GS) Optional practical training, travel, and visa acquisition
- Form I-539 and $300 filing fee
- Original Form I-20 (for "initial attendance") executed by DSO and student
- Receipt for payment of SEVIS I-901 fee
- I-94 (USCIS instructions indicate original but SCs generally accept photocopy)
- Photocopies of other immigration documents to establish current status (passport i.d. page, visa page, approval notices, etc.)
- Evidence of financial capability to meet expenses--amount stated on I-20 (#7)--estimated costs for an academic term
- usually it's enough to show ability to pay for one year
- bank statement, affidavit of support, etc.
- If dependents included in application, include their documents
- Letter explaining change of intention, plans
- File at CSC or VSC, the SC with jurisdiction over state in which applicant resides
- Both say 2.5 months current processing time
- Similar for COS to J except DS-2019 rather than I-20
- In addition to explanation of change of plans, Js need to avoid implication that the COS is to gain work authorization for dependents so may want to address that issue
- School approaches to whether students get I-20 or DS-2019 vary, but generally
- DS-2019 only if sponsored student
V. (SS) Travel and "automatic extension of visa validity"
Fs, Js, Ms and "automatic revalidation"
Pursuant to 8 CFR 214.1(b), in order to qualify, one must be:
- Travel while awaiting the employment authorization document
- Travel while engaged in OPT, including employment requirement
- Travel during cap-gap extension and STEM extension
- Travel while engaged in OPT with an approved future change of status to H-1B (see INS guidance on approved COS and intervening admission to the U.S. at AILA doc. AILA doc. 05042565).
Fs and Js re-admitted D/S
Ms readmitted for unexpired period of stay
Important to note: DOS reg. at 22 CFR 41.112(d)) similar but includes significant differences:
- applying for readmission after absence not exceeding 30 days solely in contiguous territory or adjacent island
- "adjacent island" defined at INA 101(b)(5) (statute includes Cuba, but reg. disallows)
- in possession of valid passport
- in possession of valid I-94, and
- in possession of valid I-20 with travel endorsement by DSO or DS-2019
VI. (SS) Travel to re-establish status (as an alternative to reinstatement)
New visa required? (e.g., expired, denial of reinstatement, maybe "break in studies" of more than 5 months -- see 9 FAM 41.61 N 17.4)
If so, be well-prepared to answer/discuss DS-156 #37 "have you ever violated the terms of a U.S. visa . . .?"
If Canada/Mexico - get new I-94! - and this means student needs to be prepared to discuss status problem and plans to avoid future violations
In advising a client, be sure to review carefully both 8 CFR 214.1(b) (no indication that maintenance of status required for auto-reval) and 22 CFR 41.112(d)(2)(iii) (indicates auto-reval. not available if applicant has not maintained status)
- have maintained and intend to resume nonimmigrant status (41.112(d)(2)(iii))
- not have applied for a new visa while abroad 41.112(d)(2)(vii)
- not be "national" of countries identified as supporting terrorism in the Department's annual report to Congress entitled Patterns of Global Terrorism (41.112(d)(3))
- 2008 report (http://www.state.gov/s/ct/rls/crt/) includes Cuba, Iran, Sudan, Syria
- not have had a visa cancelled under INA 222(g)
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