State Department Cable Contains Student and Exchange Visitor Visa Processing Update
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMEMBASSY KABUL
AMEMBASSY DUSHANBE
UNCLAS STATE 074670
VISAS, FOR CONSULS, ALSO FOR PAO'S
E.O. 12958: N/A
TAGS: CVIS, KPAO
SUBJECT: STANDARD OPERATING PROCEDURES: STUDENT AND EXCHANGE VISITOR VISA PROCESSING UPDATE
REF: A) STATE 58041 and previous, B) STATE 39275, C) STATE 40261, D) 02 STATE 068756
1. Summary: As discussed in refs B and C, this telegram constitutes a standard operating procedure, in this case for handling student and exchange visitor visa cases. This cable provides guidance on issues related to the various regulatory time periods impacting student and exchange visitor visa processing. The cable provides information regarding the DHS regulation limiting the entry of F, M and J nonimmigrants to thirty days or less prior to their start/report date. Para 5 provides language to be used to inform F, M and J visa recipients of this DHS regulation. Para 9 directs posts not already doing so to accept F, M and J visa applications more than 90 days prior to the applicants' start/report dates. Septel will provide guidance on the impact of SAO clearance lifespans. End Summary.
------------------------- 30 Days, 60 Days, 90 Days -------------------------
2. Many posts have inquired of the Department about the impact of the recently promulgated DHS rule limiting the entry of students and exchange visitors to thirty days or less prior to the beginning of their program or start date as given on the Form I-20 or DS-2019. For F students the Department of Justice SEVIS final rule amends 8 CFR, Section 214.2(f) to state that, "an F-1 student may be admitted for a period up to 30 days before the indicated report date or program start date listed on Form I-20." The same section states that F-2 dependents are eligible for admission if they are able to demonstrate that the F-1 student has been admitted and is, or will be within 30 days, enrolled in a full course of study, or engaged in approved practical training following completion of studies. Finally for F-1 students (and their F-2 dependents), the regulation states that an F-1 student who has completed a course of study and any authorized practical training following completion of studies will be allowed an additional 60- day period to prepare for departure from the U.S. or to transfer to another school. (See 9 FAM 41.61, N10.1)
3. For M vocational students the rules vary slightly. Amended section 214.2(m) states that an M-1 student may be admitted for a period up to 30 days before the report date or start date of the course of study listed on the Form I-20 M-N. A student in M nonimmigrant status is admitted for a fixed time period, which is the period necessary to complete the course of study indicated on the Form I-20 M-N, plus practical training following completion of the course of study, plus an additional 30 days to depart the United States, but not to exceed one year. Note: An M student may receive extensions to accommodate a total program period of up to three years. End note. (See also 9 FAM 41.61, N10.2) An M-1 student who fails to maintain a full course of study or otherwise fails to maintain status is not eligible for the additional 30-day period of stay. Regulations regarding the admission of M-2 dependents mirror those of F-2 dependents.
4. Section 214.2(j) as amended by the final rule states that a J exchange visitor, and J-2 spouse and children, may be admitted for a period up to 30 days before the report date or start of the approved program listed on Form DS-2019. The initial admission of an exchange visitor, spouse and children may not exceed the period specified on Form DS-2019, plus a period of 30 days for the purposes of travel. Reference to this 30-day "grace period" is to be found in 9 FAM 41.62, N11. A spouse or child may not be admitted for longer than the principal exchange visitor.
--------------------- Adjudication Guidance ---------------------
5. DHS inspectors currently are enforcing the regulation limiting admission of F, M and J nonimmigrants to 30 days or less before their start/report dates as listed on form I-20/DS-2019. While this regulation does not alter existing FAM guidance regarding when such visas can be issued (see para 8), recipients of these visas should be advised of this DHS regulation. Posts may use the following language to advise F, M and J visa recipients of this regulation:
"To all recipients of an F, M, or J student or exchange visitor visa: Please be aware that United States Department of Homeland Security regulations state that holders of F, M, or J nonimmigrant visas will not be admitted to the United States until a date thirty days or less prior to the beginning of your program date, or start date, as given on your Form I-20 (for F or M visas) or DS-2019 (for J visas). Please consider that date carefully when making your travel plans to the United States."
6. In adjudicating the cases of prospective students who express a convincing need to enter the United States more than thirty days prior to their start/report date, conoffs should carefully review 9 FAM 41.61 N13.2 regarding entry of F and M students prior to enrollment, and the prospective student visa. If a prospective student plans to enter the U.S. on a B visa with plans to change his or her nonimmigrant category to F or M, the visa issuing officer should explain the DHS regulation that the prospective student make this intent clear to the inspector at the port of entry (see reftel D). The visa issuing officer also must carefully explain to any would-be F or M applicant planning to enter in a non-student category more than thirty days prior to their start/report date that, before beginning any studies/program, he or she must obtain a change of classification to that of student. The alien must file with DHS Form I-539, Application for Change of Nonimmigrant Status, with the requisite fee (currently $140.00), for this purpose. The student also must submit the Form I-20 A-B or Form I-20 M-N and the required financial evidence to the DHS office at which the application is made.
7. The DHS regulation and FAM reference discussed in para 6 above relate to F and M visas. There is no FAM guidance on J exchange visitors that parallels 9 FAM 41.61 N13.2; nor does the DHS regulation requiring the B visitor to declare his or her intent to change nonimmigrant category apply to J exchange visitors. However, the practical approach is the same - if an exchange visitor must enter the U.S. more than thirty days prior to the start/program date in another nonimmigrant status, he or she must apply to the DHS for a change of classification to that of exchange visitor. The alien must file with DHS Form I-539, Application for Change of Nonimmigrant Status, with the requisite fee (currently $140.00), for this purpose. The exchange visitor must also submit the Form DS-2019 and related documentation to the DHS office at which the application is made.
8. As stated in para five above, the DHS regulation limiting entry of F, M and J nonimmigrants to thirty days or less prior to their start/report date does not impact the existing guidance in 9 FAM 41.61, N13.2: "Posts must not issue a student visa to an applicant seeking to enter more than 90 days prior to the designated registration date. This will prevent abuses by 'students' entering well in advance of enrollment and subsequently not commencing scheduled courses." Note that this FAM note concerns only the date of visa issuance, and applies only to F and M visas. There is no corresponding note in 9 FAM 41.62 concerning J visas. Given the DHS thirty-day limitation, however, the Department can see little grounds for issuing J visas more than 90 days out, in the absence of special circumstances.
9. The Department is very cognizant of potential visa processing delays due to new processing requirements, SAO requirements, etc. While we expect that the progress that we and our interagency partners have made in instituting new procedures and in strengthening existing practices will mitigate potential delays, we want to give prospective students and exchange visitors every opportunity to make their start/report dates. Therefore, the Department thanks those posts that have been accepting student visa applications in advance of the 90-day visa issuance limitation, and directs any posts not currently accepting such applications to do so. Recognizing that J visas are subject to less specific timing criteria, the Department appreciates similar flexibility in the acceptance and issuance of these cases as well.
------------------ The Impact of SAOs ------------------
10. The Department is aware of concerns expressed by several posts about how to factor in possibly limited namecheck clearance lifespans. The issue of SAO clearance lifespans is the subject of an interagency meeting to be held the week of March 24. The Department hopes to provide guidance to the field following that meeting. For now, conoffs must be cognizant of the prospective student's or exchange visitor's start/report date, and that date's impact on the 30- and 90-day "windows" in calculating when to submit any required SAO cable.
POWELL