US Visas for Students and Family

8/14/2019 US Visas for Students and Family

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THE HAYNES IMMIGRATION LAW FIRM1555 CONNECTICUT AVENUE NWSuite 200

Washington DC 20036(202) 293-3123 phone

(202) 293-6230 fax

Keeping the Family Together:

Visa Options for Foreign Studentsand Their Family Members

IEAC Spring ConferenceApril 29, 2009

Prepared byAmy R. Novick

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Overview of Presentation

Agencies that Administer the Immigration Laws

Basic Terminology

Most Common Visa Options for Foreign Students and their Families Basic Student Application Procedure

Consular Procedures, What to Expect, and Potential Problems

Student Visa Extensions, Expiration Dates, Transfer, and Effect on Visa

Consequences of Bad Behavior

Consulting / Hiring Immigration Counsel


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Agencies that Administer Immigration Laws

THE PLAYERS: 3 main DHS, DOS, DOL

1. DHS Department of Homeland Security (Homeland Security Act of 2002) established 3 separate agencies (formerly INS)

a. U.S. Citizenship and Immigration Services (USCIS)Responsible for adjudicating immigration benefits-Determining eligibility for status

b. Customs and Border Protection (CBP)Responsible for inspection of people and goods at borders and ports of entry

c. Immigration and Customs Enforcement (ICE)

Responsible for interior enforcement-Investigates violations of immigration laws, enforces departures

(deportation and removal)


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2. Department of State (DOS)Authority to issue visas and process visasConducts security checks abroadConsular officials have nonreviewable discretion to deny visas, with limited

exceptions

3. Department of Labor (DOL)Involved in those cases where US labor market is tested and workforce

issue involved

Department of JusticeImmigration Court directed by Attorney GeneralForeign nationals apprehended by CBP or ICE appear before immigration judge


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Basic Terminology

Visa vs. Admission

Visa - must prove eligibility for visa; stamp in passport;I-94 arrival departure record

Nonimmigrant vs. Immigrant

Key distinction temporary vs. permanent and matter of intent

Immigration law sets out presumption that every foreign national applying for visais an intending permanent resident.

Every alien shall be presumed to be an immigrant until he establishes to aconsular officer and immigration officer at the time of application for admissionthat he is entitled to a nonimmigrant status


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Green Card/ Green Card Holder

Evidence of lawful permanent residentOften used interchangeably erroneously as work permit.

Lawful Permanent Resident vs. Citizen

LPR are here permanently but do not have the same rights as USCCan be deported or otherwise lose statusCannot vote or serve on a juryNot entitled same benefits or jobs as citizens

Must apply for citizenship (5 yr/3yr wait)

Unlawful Presence

Overstayed visa and out of status

3 year bar 180 days10 year bar 365 daysTriggered only if you leave the U.S.


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Visa


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I-94


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Visa Application

Must Prove Eligibility

If USCIS approval is required, must have approval notice

Consular Officer will request electronic notification

Applicants Must Present Valid Passports & Supporting DocumentsSecurity & Name Checks

Upon Issuance Of Visa, May Seek Admission To U.S.

Exceptions Most Canadians & Temporary Visitors From Certain Countries


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Grounds of Inadmissibility

Medical

Criminal and related grounds

Security and Related Grounds

Public charge

Labor Certification and other qualifications for immigrants

Illegal entrants and immigration violators

Documentation requirements for nonimmigrants and immigrants

Aliens previously removed

Aliens who are unlawfully present

Practicing Polygamists, child abductors and their supporters, unlawfulvoters, and former citizens who renounce to avoid taxes


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Most Common Nonimmigrant Visas

Visitors

B-1/B-2 Visitor for business or for pleasurecannot work or obtain remunerationmust depart at end of visit

Business (B-1)Can engage in commercial transactionsNegotiate contactsConsult with business associatesAttend conferencesUndertake independent research

Pleasure (B-2)TourismMedical treatmentsParticipate in amateur athletics


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VWP

Visa Waiver Program

Available to foreign nationals from countries of low rates of visa denialsIndividual need not formally apply for visa in advance but must obtain electronicauthorization in advance of boarding - ESTA90 days onlycannot change status once in the U.S.other limitations


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Educational

F-1 Foreign Students

Students who engage in an academic full course of study

M-1 Vocational Students

Similar to F-1 but for vocational institutions

J-1 Exchange Visitors

Exchange students coming through programs specifically approved by the StateDepartment

Camp counselorInternships

Two year home residency requirement

Waivers are available


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Other Visa Options for Families

Work-related

H temporary workers and traineesH-1B for temporary professionalsMust have sponsoring employerPersons who will engage in a specialty occupation, defined expansivelyPosition requires specialized knowledgeMust have a bachelors degree or higher or its equivalent (experience foreducation is permissible)

Eer must obtain certification from DOL in which eer attests among other things,that the wage paid to alien is the prevailing wage or no less than wage paid tosimilarly qualified workersSpouse and dependents cannot workSix year limit with exceptions

65,000 annual quota can file April 1 for positions starting October 1


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L intracompany transferees: managers, executives, or those withspecialized knowledge

Must be transferred from company abroad to affiliate, subsidiary, or parent toU.S. entityEmployed 1 year of last 3 yearsSpouse can work5/7 year limit

E-1/E-2 Treaty Trader or Investor

Must be national of country where reciprocal treaty of commerce or navigationbetween U.S. and country of nationality (about 80 countries)Does not need sponsoring employerSpouse can workIndefinite

E-1 Treaty Trader - trade must be substantialE-2 Treaty Investor - investment in new commercial enterprise must besubstantialNo set formula for determining substantial


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O aliens of extraordinary ability in arts, science, education, business,athletics

Must show sustained national or international acclaimMust have sponsoring employerSpouse /dependents cannot workIndefinite

R religious workers

TN Under NAFTA -- Canadian or Mexican professionals

Similar to H-1B but no limitations on length of stay


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Foreign Student Program

Creation of SEVIS Student and Exchange Visitor Information System - tracksF & M vocational students

F-1 Foreign Students

F-1 requirements:

1. Residence in a foreign country which he has no intention of abandoning

2. bona fide student pursuing an academic full course of study3. seeks to enter temporarily and solely for the purpose of pursuing such acourse of study at an established college, university, high school, elementaryschool, or other school designated and approved by the Attorney General.


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Admitted for duration of status (D/S)

Monitored by DSO (designated school official) at an approved institutionEligible for optional practical training (OPT) for 12 months after completion ofprogram

29 mo. OPT for students in STEM fields: science, technology, engineering andmath.


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Basic Student Application Procedure

Must get authorization from SEVIS approved school-9,609 institutions currently on list- New schools under ICE site visit, application and fee (I-17), designated

school officials who sign immigration forms- approval granted for two years; schools must get recertified- strict rules govern schools and school officials who issue I-20s

Over 1 million foreign students and their families in the U.S.

USCIS / SEVIS approved school issues I-20I-20 certifies admission into program and that student is eligible and that

student made application to school

DSO enters data into SEVIS, which is accessible to consular officials. Recordfollows the individual.


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Student applies for visa at consular post Form DS-156 (and if applicable, DS-157, DS-158)


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Consular Procedures, What to Expect, and Potential Problems

Consular web sites basic info on requirements, appointment wait, procedures

Consulate issues F-1 visa-Verify SEVIS 1-20 in system- reviews visa application (DS-156)- background security check- notifies USCIS that visa has been issued; other I-20s invalidated

Common reasons for denialNo SEVIS recordFailure to pay SEVIS fee (I-901)Failure to establish eligibility

- ties to home country

- sources of financial support- application of U.S. education once they return


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Cannot issue visa more than 120 days in advance of program start date andstudent cannot enter more than 30 days in advance; does not apply to returningstudents.

Consulate can issue visitors visa if student is undecided

Can issue B-2 visitor visa for short-term course of English language study. (lessthan 18 hours per week)

Student can change status once in U.S. but takes 3 months under current

processing times and can cause problems later; cannot enroll in school untilchange of status approved.

- preconceived intent- 30/60 day rule- Need letter explaining why change of status


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Once in the U.S.

CBP inspector takes SEVIS I-20, after 10 days returns it to school and school tostudent.

Admitted for duration of stay (as indicated on I-20)

Student cannot attend public elementary school (K-grade)

Cannot attend publicly funded adult education program

Can attend public secondary school only if:

a) period not in excess of 12 months; and

b) demonstrates reimbursement of full unsubsidized per capita cost ofeducation


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Can attend public community colleges or junior colleges (at nonresident tuitionrates)

If student violates this provision, barred entry for five years (no waivers)

No parachute students


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Visa Extension, Expiration Dates, Transfer, and Effect on Visa

Extension must be requested before current I-20 expires, must apply with DSO

Full course of study student can drop courses for academic or medical reasons generally can drop once but must get approval in advance

Transfer must do so within 5 months of new start date if in US. Must adviseDSO and establish transfer date

Closure of school student must transfer to another school or risk being subjectof removal and accruing unlawful presence

Reinstatement available if student engaged in status violations


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Consequences of Bad Behavior

Using two different I-20s

Violating or falling out of status - working, dropping courses

Removal proceedings and determination by judge that status violation occurred

Bars to readmission 3/10year bars; 5 year bar as visa violator

Not continuously maintaining status

Problems later unable to adjust status - 245 (c)(2)

Fraud problems


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Consulting / Hiring Immigration Counsel

AILA American Immigration Lawyers Association-national association of immigration lawyers 11,000

State Bars if suspect incompetence

Consultation process