DOS Cable on IIRAIRA Provisions on Student Visas
FM SecState WashDC
To All Diplomatic and Consular Posts
Special Embassy Program
AmEmbassy Asmara
AmEmbassy Sarajevo
AmEmbassy Bujumbura
Info USIA WashDC 0000
USINS WashDC
Unclas State 245754
USIA for GC/V
E.O. 12958: N/A
Tags: CVIS
Subject: P.L. 104-208 Update No. 11 - Implementing Public School Provisions of INA 214(l) and 212(a)(6)(G)
Ref: A) State 229819 B) State 239978, C) State 210953
Summary:
1. This cable is Number 11 in a series providing information on the immigration provisions of Pub. L. 104-208, the “Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA 96). This cable will discuss implementation of the new provisions on student visas (new INA section 214(l) and 212(a)(6)(G). The Department and INS are working on regulations covering these provisions. As the regulations will not be completed before the effective date of the two sections (November 30, 1996), consular officers should follow interim guidance below.
Section 213(L) - Public School Restrictions
2. Section 214(L) prohibits aliens in F-1 status from attending public elementary schools (grades K through 6) or publicly-funded adult education programs. Beginning November 30, 1996, Posts may not issue F-1 visas for study in such schools or programs. INS intends to define “publicly-funded adult education” as programs run tuition-free at or in conjunction with public secondary schools. It does not/repeat not apply to schools such as community colleges which receives public funds but charge foreign students tuition.
3. Section 214(L) also places payment requirements on F-1 studies in public secondary schools. Beginning November 30, 1996, Posts cannot issue an F-1 visa for study in a public secondary school (grades 7 through 12) unless the applicant demonstrates that he/she has reimbursed the school authority for the unsubsidized, per capita cost of education for the intended period of study.
4. In some instances, reimbursement might be indicated on the I-20, although at present this is not required. It is likely that few public schools or prospective students will be aware of the new provisions of the law. Therefore, posts may continue to accept for visa issuance an I-20 which does not address the question of payment, provided the student presents independent evidence of the reimbursement mandated under Section 214(L).
5. For the interim, F-1 applicants for public secondary schools who lack evidence of reimbursement should be refused under section 221(g), consular officers should advise such applicants to arrange reimbursement directly with the school authority, and to reapply with proof of payment.
6. It is the school’s responsibility to determine what amount constitutes the “unsubsidized capita cost of education.” Consular Officers should not inquire into the calculation. Cases which appear to be deliberate attempts to circumvent the law should be referred to the Department. Posts should also note that section 214(L) does not/not require reimbursement for public school attendance which took place prior to November 30, 1996.
12-Month Limit on Attendance
7. Under Section 214(L), an alien cannot attend U.S. public secondary schools while in F-1 status for more than an aggregate of 12 months. Public secondary school attendance in a status other than F-1 (including unlawful status) does not/repeat not count against the 12 month limit. CA/VO believes that public secondary school attendance in F-1 status prior to November 30, 1996 likewise will not count against the 12 month limit.
8. An F-1 visa cannot be issued if the proposed length of study listed on the I-20 would take the student beyond the permitted 12 months.
Transfer from Private Schools
9. F-1 students who, on or after November 30, 1996, transfer from private to public secondary school must also fulfill the requirement of section 214(L). If an F-1 student in a private elementary school or publicly financed adult education transfers to a public school or program, the visa is considered void, and the student is in violation of status. Likewise, if an F-1 student in a private secondary school transfers to a public secondary school without reimbursing the public school for the unsubsidized cost of education, the visa is considered void and the student is in violation of status.
Ineligibility Under Section 212(A)(6)(G)
10. The ineligibility for student visa abusers under the new section 212(A)(6)(G) is limited in scope. It does not apply to all violations related to the public school provisions of Section 214 (L).
11. Under Section 212(A)(6)(G), an alien who obtains F-1 status on or after November 30, 1996, and subsequently uses that status to (1) attend a public elementary school, (2) attend publicly funded adult school education, or (3) attend a public high school without reimbursing the school authority for the unsubsidized per capita cost of education, shall be excludable until outside the U.S. for a continuous period of five years.
12. Again, public school attendance while in a status other than F-1 (including unlawful status) should not be considered for the purposes of section 212(A)(6)(G). In addition, the section only applies to students who obtain F-1 status after the effective date of the New law. If a student was attending a public school in F-1 status before November 30,1 996, continuing attendance after that date would not render him/her ineligible under section 212(A)(6)(G).
13. When regulations are completed, CA/VO believes they will-permit this exemption only while the student remains in continuous F-1 status within the U.S. If such a student departs the U.S. or falls out of F-1 status on or after November 30, 1996, he/she will have to meet all the provisions of section 214(L) to obtain an new F-1 visa. In that case, once the student is readmitted to the U.S., any subsequent violations of section 214(L) will render him/her ineligible under section 212(A)(6)(G)
14. Minimize considered.
Warren Christopher