State Department issues cable on student visas

When applying for certain visas (such as visitor/tourist or student visas), the law requires that the applicant cannot have any "immigrant intent", meaning the applicant:

Has a residence abroad (in their home country), has no immediate intention of abandoning that residence; and intends to depart from the United States upon the completion of the non-immigrant activity (such as visiting or studying).

Most visa denials are because the applicants were unable to satisfactorily prove to the Consul that they did not have "immigrant intent". Recently, the US State Department issued a cable, instructing US Embassies and consulates around the world on how Consuls should evaluate the "intent" issue in connection with student visas. These instructions might also be of value to those who are applying for other types of visas, such as visitor visa, which also involves the same issues of intent. The cable made the following points in connection with student visas:

Consuls should focus on the person’s immediate and near-term intent to "maintain a residence abroad". Consuls should not speculate on "what might happen in the future", during the student’s lengthy period of study in the US. For example, a consul should not refuse a student visa based on speculation that once the student starts studying, the student may like it in America, and may eventually want to live and work in the US permanently. That is speculating too far into the future, and this cable instructs consuls not to engage in that type of speculation.

While the concept of "ties" to the applicant’s home country is very useful in evaluating a person’s non-immigrant intent (i.e. the applicant, whether visitor or student, has strong social, economic, and family ties to the home country), it is relatively less useful in evaluating the present intent of a student. Typically, a student is young, unemployed, has no dependents, and does not have substantial personal assets. Thus, the student is not typically able to establish "strong ties" to the Philippines. However, this should not be held against the student, so long as their immediate intent is to study in the US and return to the Philippines upon graduation.

The fact that the alien intends to study a subject for which there is no or little employment opportunity in his home country is not a basis for refusing a student visa, even if the student’s proposed course of study seems to be impractical. For example, if a person from a developing country wants to study nuclear engineering, simply because he enjoys it, he should not be refused a visa because there is no market for nuclear engineer skills in his home country.

The fact that the alien’s home country can provide the equivalent quality courses in the same subject matter should also not be a basis for refusing the student visa (i.e. a person wants to study nursing in the US but there are plenty of nursing schools in the Philippines). The State Department noted that "the student has the right to choose where s/he will obtain an education if accepted by the school".

US Embassies and consulates should "facilitate the re-issuance of student visas", so that students can travel freely back and forth between their home country and the United States. The State Department noted that if students feel that they will encounter difficulties in obtaining a new student visa, or that a student visa will not be issued to them at the Embassy, they may be reluctant to ever leave the United States during the course of their studies, even for a short vacation during summer. In other words, unless the Embassy finds that there have been significant changes in the student’s circumstance from the time the previous student visa was issued, re-issuance of student visa should be done in the normal course of business, and students should not be given a hard time at the Embassy in getting a new student visa. Of course, if the student dropped out of school, or did not take the required load, that could be a significant change in circumstance.

The fact that a school has issued an I-20 (Certificate of Eligibility for Nonimmigrant Student Status) should be sufficient evidence that the school has accepted the applicant as a student. Consular officer should not "go behind the I-20 to adjudicate the alien’s qualifications as a student for that institution", unless the Consular officer has a reason to believe that the applicant engaged in fraud or misrepresentation. Furthermore, the student’s choice of subject matter is not determinative of their scholastic aptitude. For example, if Harvard University accepted someone with an average GPA, that should be sufficient proof that the alien has been accepted, and the Consul should not be making determinations that, "you’re not smart enough for that school, so I am refusing the visa".

All legitimate schools must be accorded the same weight under the law, whether it’s a major university, community college, or lesser-known school. There is no legal difference between community colleges, English language schools, and four-year institutions. The State Department instructs that the "applicant should be adjudicated on their bona fides as a student regardless of institution [or] program of study". Of course, if the Consul is suspicious about the authenticity of the school, the Consul should contact the DHS in America for verification.

I know how important education is to Filipinos, and many of them want their children to be able to study in the US. This recent cable from the State Department now clarifies some of the major issues concerning eligibility for a student visa, and may help legitimate students avoid being refused their student visa.

WEBSITE: www.gurfinkel.com

Four offices to serve you:

Philippines: 8940258 or 8940239

Los Angeles: (818) 5435800

San Francisco: (650) 8277888

New York (212) 8080300.