DOS Favors Issuance of Student Visas
Posted Nov 18, 2005
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The U.S. Department of State (DOS) issued a cable in September 2005 pertaining to the standards U.S. consulates are to apply toward student visa applications. The DOS cable specifically addresses the immigrant intent presumption that is applied in student visa applications. The cable essentially provides guidance to consular officers and directs that decisions for students on this important matter be made in the context appropriate for a student. It appears that the cable is directed at establishing a reasonable and favorable standard to help students obtain F-1, J-1, or M-1 student visas.
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Background on Students Obtaining Visas
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We at The Law Office of Sheela Murthy covered the immigrant intent presumption that applies to most nonimmigrant categories in our April 29, 2005 MurthyBulletin article, DOS Cable on 214(b) : Presumption of Immigrant Intent, available in MurthyDotCom. This presumption has created problems for many students, whether applying for F-1 visas as full-time students, J-1 visas as international exchange scholars, or M-1s for vocational schools. It is often difficult, if not impossible, for students to establish sufficient ties to their home countries. This has created problems for U.S. universities and colleges, as foreign students find that they face delays in obtaining student visas and rejections at the U.S. consulates. The result has been a substantial loss of revenue for U.S. schools and related businesses, as well as affecting the attraction of the U.S. as a desirable destination for many foreign students. The cable is a positive sign and, hopefully, bona fide students will be able to obtain the requisite student or scholar visas.
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Determination of Intent and Residence Abroad
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Students and certain other nonimmigrants must establish that they have unrelinquished domiciles abroad. They must demonstrate ties to their home countries. The DOS cable recognizes that the concept of "ties" to the home country is often not useful in evaluating a student’s intentions. Most students are fairly young, without any long-term or professional employment, without substantial personal assets and without dependents. They are seeking their futures and may have plans that are fairly general.
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The cable, therefore, specifies that the requirement of residence abroad for a student visa applicant should be considered broadly, with the focus on the student's immediate intent. While they may not have significant ties, students also may not have formed any real long-range plans to abandon their home countries. Thus, this latter point is more relevant.
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Course of Study’s Use or Availability in Home Country
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It is stated in the cable that the fact that the prospective student desires to pursue studies that would not be needed or in demand in the home country is not a basis for denial. The reason for this is that circumstances change. The visa also should not be denied simply because the course of study is available in the home country. The cable states that students have the right to choose where they wish to study, if they are accepted in a U.S. school or university.
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Visa Renewal during Study Program
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Students sometimes have to travel in the middle of their studies. They sometimes encounter problems obtaining visas to return so they can complete their programs of study, particularly post 9/11. The cable takes steps to address this difficulty. It states, essentially, that visas should be reissued in the normal course of business, unless there was a significant change of circumstances following the previous visa issuance. Students should, in the words of the cable, be encouraged to travel to their home countries to maintain their ties there. The cable recognizes many students' reluctance about traveling over the past few years. The consulates are encouraged to facilitate travel for existing students.
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Conclusion
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At The Law Office of Sheela Murthy, we believe that this cable is helpful in addressing problems faced by many students trying to study in the post-9/11 United States. Bona fide foreign students are a boost to the U.S. in many ways. Schools and the economy benefit from the ability of the U.S. to attract high-quality students from abroad, many of whom them remain in the U.S., fulfilling the needs of U.S. employers who require a skilled workforce. We trust that this recent DOL cable is a sign of much-needed recognition of the importance our foreign students to U.S. educational institutions as well as the U.S. economy in general, with their long term benefits to our society.