Law Office of Bonnie Stern Wasser
—Bringing People Together—
State Department Updates Guidance on Immigrant Intent Issues for F-1 Foreign Student Visa Applicants
By Bonnie Stern Wasser, Esq.
© 2005
The following is intended as general information and not legal advice. It is not meant to establish an attorney/client relationship.
In a departure from the US State Department's (USDOS) usual determinations of "immigrant intent" concerning foreign student visa applicants, the USDOS has issued updated guidance on how consular officers should analyze whether a foreign student is likely to stay permanently in the USA. Immigration law presumes all applicants for visas intend to stay permanently. However, in order to qualify for certain nonimmigrant temporary visas such as tourist (B-1/B-2) or student (F-1) visas, for example, the applicant must show he or she has not abandoned his or her permanent residence abroad and intends to return home after completion of the authorized stay. In the new guidelines, the USDOS contrasts nonimmigrant intent of F-1 students from tourists. For the first time, the USDOS acknowledges that:
"The typical student is young, without employment, without family dependents, and without substantial personal assets. Students may have only general rather than specific plans for the future. These personal circumstances differ greatly from those of persons usually qualifying for B-1's or P visas for example. The residence abroad requirement for a student should therefore be considered in a broader light, focusing on the student applicants' immediate intent. While students may not be able to demonstrate strong "ties", their typical youth often conveys a countervailing major advantage in establishing their bona fides: they don't necessarily have a long-range plan, and hence are relatively less likely to have formed an intent to abandon their homes." (Section 4)
This is a significant change. Hundreds of would-be foreign students are denied visas every year, mostly in developing countries. The usual reasons for denial are the factors of being young, single, without future plans, and being without sufficient assets in the home country making students most likely NOT to return home after schooling; the theory being that such students are more likely to seek work and stay in the USA indefinitely or illegally. The new guidelines treat these factors completely differently.
Further details about what additional factors a consular officer may or may not consider can be found in the original article: http://travel.state.gov/visa/laws/telegrams/telegrams_2734.html.
How consular officers will implement these guidelines in actuality remains to be seen. The DOS guidelines come on the heels of frequent reports about dropping enrollments of foreign students in the US, while competing countries, such as Canada and Australia, have been more welcoming of foreign students. For example, see the November 5, 2005, Seattle Times article on Canadian immigration and the March 24, 2005, Radio Free Europe article on world-wide immigration trends.
