ILW.COM - the immigration portal Immigration Daily

Home Page

Advanced search

Immigration Daily


Processing times

Immigration forms

Discussion board



Twitter feed

Immigrant Nation


CLE Workshops

Immigration books

Advertise on ILW


Chinese Immig. Daily


Connect to us

Make us Homepage


Immigration Daily

The leading
immigration law
publisher - over
50000 pages of free

Immigration LLC.

< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

R 281839Z SEP 05
E.O. 12958: N/A
SUBJECT: Students and Immigrant Intent 
REF: (A) Section 101(A)(15)(F) and 9 FAM 41.61  (B) 04
STATE 274068 
STATE 00180015 001.2 OF 003

1.  Summary:  This cable provides some guidance for
consular officers in how to interpret the immigrant intent
provisions when adjudicating student visa applications.
Consular officers adjudicating student visa applications
should evaluate the applicant's requirement to maintain a
residence abroad in the context of the student's present
circumstances; they should focus on the student
applicant's immediate and near-term intent.  Revised FAM
notes follow.  End summary.

2.    Residence abroad requirement in general terms:  As
explained in ref (B), the immigrant intent requirement
applies in only certain nonimmigrant visa classifications.
Most of these visa classifications require the visa
applicant to satisfactorily demonstrate that s/he
possesses a residence abroad that s/he has no intention of
abandoning.  This residence abroad requirement is found in
the B, F, J, M, O-2, P, and Q visa classifications.

3.  The purpose of travel is always the controlling
criterion for determining a proper visa classification.
Each classification differs fundamentally in terms of
activities permitted and time period contemplated in the
United States.  Student visa adjudication is made more
complex by the fact that students typically stay in the
U.S. longer than do many other non-immigrant visitors.  In
these circumstances, it is important to keep in mind that
the applicant's intent is to be adjudicated based on
present intent - not on contingencies of what might happen
in the future, during a lengthy period of study in the
United States.

4.  Context of residence abroad for students:  While the
concept of "ties" is very useful in evaluating many non-
immigrant visa applicants, it is relatively less useful in
assessing the present intent of a student.    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.

5.  Intended course of study:  The fact that the alien
plans on studying a subject for which there is no or
little employment opportunity in his country of residence
is not a basis for denying the visa; because circumstances
may change, this fact should not be deemed a negative
factor in adjudicating the case.  Nor, on the other hand,
is the fact that the country of residence can provide the
equivalent quality courses in the same subject matter.
The student has the right to choose where s/he will obtain
an education if accepted by the school.

6.  Visa renewal during course of study: Some students
have to apply for new visas if they go home or travel
during their period of study.  Returning student
applications should generally be reissued in the normal
course of business, unless circumstances have changed
significantly from the time of previous issuance.
Students should be encouraged to travel home during their
studies in order to maintain ties to their country of
origin..  If students feel that they will encounter
difficulties in seeking a new student visa or that a visa
will not be issued to them so they can continue their
studies, they may be less inclined to leave the United
States during their studies and hence may distance
themselves culturally from their homeland.  Posts should
facilitate the reissuance of student visas so that these
students can travel freely back and forth between the
homeland and the United States.

7.  Student Visa Reminders:

A.  Educational qualifications:  The I-20 is evidence that
STATE 00180015 002.2 OF 003 the school has accepted the applicant as a student.  The
choice of the subject matter is not determinative of the
applicant's scholastic aptitude.  Consular officers should
not go behind the I-20 to adjudicate the alien's
qualifications as a student for that institution.  If the
consular officer has reason to believe that the applicant
engaged in fraud or mispresentation to garner acceptance
into the school as laid out in 9 FAM 41.61 Note 8, then
that information is an important factor to consider in
determining if the applicant has a bona fide intent to
engage in study in the United States.  Verification of
admission with the school would usually be required if you
are considering applying INA 212(a)(6)(C).

B.  Community colleges or lesser-known schools:  All
legitimate schools must be accorded the same weight under
the law.  The INA does not distinguish among schools
qualifying for I-20 authorization based on size or
recognition.  There is no legal difference between
community colleges, English language schools and four-year
institutions.  Applicants should be adjudicated on their
bona fides as students regardless of institution of
program of study.  If you have reason to question the
authenticity of the school contact either DHS or

8.  Text of FAM Notes:

9 FAM 41.61 N5.1 Residence Abroad Required
(ct:visa-706;   02-17-2005)
The INA requires that the applicant possess a residence in
a foreign country he or she has no intention of
abandoning.  The regulations require that the consular
officer be satisfied that the alien intends to depart upon
termination of student status.  Consequently, the consular
officer must be satisfied that the applicant, at the time
of visa application:

(1)     Has a residence abroad;
(2)     Has no immediate intention of abandoning that
          residence; and
(3)     Intends to depart from the United States upon
         completion of the course of study.

9 FAM 41.61 N5.2  Context of Residence Abroad for Student
(ct:visa-706;   02-17-2005)
The context of the residence abroad requirement for
student visas inherently differs from the context for b
visitor visas or other short-term visas.  The statute
clearly pre-supposes that the natural circumstances and
conditions of being a student do not disqualify that
applicant from obtaining a student visa.  It is natural
that the student does not possess ties of property,
employment, family obligation, and continuity of life
typical of b visa applicants.  These ties are typically
weakly held by student applicants, as the student is often
single, unemployed, without property, and is at the stage
in life of deciding and developing his or her future
plans.  This general condition is further accentuated in
light of the student's proposed extended absence from his
or her homeland.  (see 9 FAM 41.11 n2.)

Nonetheless, the consular officer must be satisfied at the
time of application for a visa that an alien possesses the
present intent to depart the U.S. at the conclusion of his
or her studies.  That this intention is subject to change
or even likely to change is not a sufficient reason to
deny a visa.

9 FAM 41.61 N5.3 Relationship of Education or Training
Sought to Existence of Ties Abroad
(ct:visa-706;   02-17-2005)
The fact that a student's proposed education or training
would not appear to be useful in the homeland is not, in
itself, a basis for refusing an f-1 or m-1 visa.  This
remains true if the applicant 's proposed course of study
seems to be impractical.  For example, if a person from a
developing country may wish to study nuclear engineering
simply because he enjoys it, he may no more be denied a
visa because there is no market for a nuclear engineer's
skills in his homeland than he may be denied a visa for
the study of philosophy or greek simply because they do
not lead to a specific vocation.

9 FAM 41.61 N5.4  Availability of Collateral Academic
Education in the Applicant's Homeland
(ct:visa-706;   02-17-2005)
The fact that education or training similar to that which
the applicant plans to undertake is apparently available
in the home country is not in itself a basis for refusing 

STATE 00180015  003.2 OF 003 

a student visa.  An applicant may legitimately seek to
study in the United States for various reasons, including
a higher standard of education or training.  Furthermore,
the desired education or training in the applicant's
homeland may be only theoretically available; openings in
local schools and institutions may be already filled or
reserved for others.

9.  Conclusion:  Student visa applications must be
adjudicated in the proper context, a long view.  You, as
Consular officers, must assess the residence abroad
requirement focusing on whether the applicant intends at
the time of applying for the visa to abandon his or her
residence abroad.  In evaluating this intent, relatively
little weight can be given to the traditional "ties" that
are more useful in adjudicating applications  for B visas.
Please seek advisory assistance with the advisory opinions
division if any questions arise.

10.  Minimize considered.