NEWSFLASH : Major Changes for Visitors and Students
Posted Apr 10, 2002

In the March 29, 2002 issue of the MurthyBulletin, we reported on the proposed rule that would limit the stays of visitors to the U.S. to only 30 days. This is still a proposal. In the same article, entitled Proposal to Reduce Tourist Stays to Only 30 Days! available on MurthyDotCom, we also discussed that these B1/B2 visitors may no longer be able to file for changes of status after entering the U.S. The latter rule is effective immediately.

On April 8, 2002, the INS announced their plan to publish a rule on Friday, April 12, 2002, in the Federal Register, regarding students both in the academic (F) and vocational (M) categories that will be effective immediately upon publication.

Also on April 12, 2002, INS will be issuing a proposed rule, that, if it becomes final, will affect the time of allowed stays in the U.S. for B-2s (visitors for pleasure) and will limit the ability of B-1 (business visitors) and B-2 visitors to extend their stays. We stress that, as of this writing, this rule is only a proposal and not yet law, although it appears to be on a "fast track" toward approval.

The clear impetus for these changes is concern over maintaining stronger control of our borders following the attacks of September 11, 2001. The tourist and student visa programs have come under strong criticism and scrutiny, as it is apparent some of the attackers entered the U.S. on visitor visas and applied to change to student status. Public awareness of former monitoring practices of persons entering the U.S. on student and tourist visas, and the relative ease with which individuals could gain
permission to remain in the U.S. for extended periods of time, has pressured the administration and the INS into revising some of the regulations and policies. These items are part of this on-going effort.

The changes are as follows:

Approval Required Prior to School Attendance

A new "interim rule," expected to be published on April 12, 2002, would prohibit persons admitted in either the B-1 or B-2 visitor category from attending school prior to INS approval of the request to change the status from visitor to either the M or F student category. Previously, applicants for a change of status could enroll in school upon filing for the change in status. This was, in part, due to the extended delays in processing on the part of the INS and the need to enroll in school at set times during the year. To facilitate the new rule, INS has a target processing timeframe of 30 days to approve or deny change-of-status petitions. The INS expects to reach this level of processing speed in 60 days at all Service Centers. The new rule will be effective when it is published. There will be a period for submission of written "public comment" after publication. It is important for our MurthyBulletin and MurthyDotCom readers to understand that the interim rule is effective during the public comment period. The government
will incorporate those comments it considers useful when publishing the final rule but the interim rule is effective immediately upon its publication, expected April 12, 2002.

The pre-April 12, 2002 rule allowing for enrollment prior to approval of change in status will continue to apply to persons who were already present in the U.S. in B status, so as not to disrupt any course of study they may have initiated under the current rule. Also, this change in the law does not limit or change the ability of persons in other visa categories to attend school in a manner consistent with maintenance of their statuses.

Minimum Six-Month Visitor For Pleasure Period Eliminated

A proposed rule would eliminate the current, standard minimum period for admission in the B-2 category. This will be replaced with "a period of time that is fair and reasonable for the purpose of the visit." A person entering on a B-2 visa will have to explain the reason for the visit and the inspector will determine how long the person must stay to accomplish the purpose. If the time period required cannot be established, the inspector will grant 30-day permission to remain in the U.S. The burden for proving a need to stay in the U.S. for a longer period rests on the B-2 visa holder.

At this point, it is unclear how much explanation and documentation an examiner may be willing to review and consider in light of the volume of cases that must be processed quickly at the Ports of Entry. It remains to be seen whether costly and lengthy air travel to visit family in the U.S. from countries located at greater distances (like India or Australia) will be considered for increasing the "appropriate period" of authorized stay in the U.S. beyond the 30-day timeframe.

Changes to Requirements for Extensions of Stay

The proposed rule limits the ability of visitors in both categories to extend their stays. Extensions of stay, which were previously granted in a fairly liberal manner, will now require "unexpected or compelling humanitarian reasons" in order to gain approval. The applicant will have to file in a timely manner and establish that there are adequate financial resources to stay in the U.S. without working and that s/he is maintaining a permanent home abroad. The proposed rule reduces the maximum extension to six months.

According to the announcement, the INS recognizes that some persons, such as retirees who own vacation homes in the U.S. may wish to remain longer than six months. The announcement states that the proposed rules will allow extensions in such cases.

New Change of Status Requirements

Individuals planning to attend school in the U.S. are expected to enter on student visas, not as visitors or tourists. However, there are times when prospective students need to enter the U.S. as tourists to interview for admission or simply visit prospective schools. The proposed rule will allow only persons who state their intention to become students at the time of their admission in the B category to change from B to F. Their I-94 admission documents will be noted "prospective student." This rule will not
affect current cases where applications for change of status are pending; it will only affect individuals who enter the U.S. after the rule becomes
effective.

In our government's efforts to enhance security and protect our borders, there is a concern that we may be, to use the proverbial phrase, "throwing the baby out with the bath water." It is a challenging task for the administration and the INS to make changes that will not have a chilling effect on legitimate tourism, family visits, and business visits, as well as continue to recognize that there are millions of bona fide students seeking education in the U.S.

For those of you who wrote to The Law Office of Sheela Murthy following our March 29, 2002 article, requesting information on how to voice your concerns about the shortened timeframe for tourists to enter the U.S., the interim rule will contain a name and address for sending your written comments. As always, you should also contact your elected representatives to voice your concerns. They could influence the administration to consider the importance of the ability for everyone living in the U.S. to spend time with loved ones, maintaining family bonds, as well as facilitating continued tourism, educational opportunities, and commerce.

These issues and the resulting changes pose a challenge both to the government and to those hoping to travel to the U.S. in a post-9/11 world. The problems faced by the INS and the U.S. government in securing our borders without restraining tourism, education, and business pose difficulties that cannot and should not be resolved quickly or
simplistically.