DOS Reminder re F-1s in Public Schools

UNCLAS STATE 051174

E.O. 12958: N/A

TAGS: CVIS

SUBJECT: FOREIGN STUDENTS ATTENDING U.S. PUBLIC SCHOOLS: A

214(L) REFRESHER

REF:(A) 97 STATE 32114 (B) 96 STATE 245754 (C) 96 STATE

229819 (D) 96 STATE 249115

1. SUMMARY. IN 1996 - 97, VO PROVIDED GUIDANCE ON NEWLY

ENACTED RESTRICTIONS ON FOREIGN STUDENTS' ACCESS TO U.S.

PUBLIC EDUCATION PROGRAMS (REFTELS). FOR POST'S

CONVENIENCE, WE ARE REISSUING AND UPDATING THIS GUIDANCE IN

SIMPLIFIED, CONSOLIDATED FORM. END SUMMARY

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214(L): WHO'S COVERED; WHO'S NOT

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2. UNDER INA SECTION 214(L), A FOREIGN STUDENT MAY NOT BE

ACCORDED F-1 STATUS TO STUDY AT A PUBLIC ELEMENTARY SCHOOL

OR A PUBLICLY FUNDED ADULT EDUCATION PROGRAM. IN ADDITION,

A FOREIGN STUDENT MAY NOT BE ACCORDED F-1 STATUS TO ATTEND

PUBLIC SECONDARY SCHOOL UNLESS THE AGGREGATE PERIOD IN F-1

STATUS AT SUCH A SCHOOL DOES NOT EXCEED 12 MONTHS AND THE

ALIEN DEMONSTRATES THAT HE/SHE HAS REIMBURSED THE SCHOOL

DISTRICT FOR THE FULL, UNSUBSIDIZED PER CAPITA COST OF

HIS/HER EDUCATION AT THE SCHOOL. (SEE 9 FAM 41.61.)

3. IT IS IMPORTANT TO NOTE THAT SECTION 214(L) ONLY

AFFECTS FOREIGN STUDENTS STUDYING IN F-1 STATUS -- IN OTHER

WORDS, THOSE TO WHOM AN I-20 HAS BEEN ISSUED. IT DOES

NOT/NOT APPLY TO ALIENS STUDYING AT PUBLIC SCHOOLS IN J-1

STATUS, NOR DOES IT APPLY TO DEPENDENTS OF FOREIGN

NATIONALS IN THE UNITED STATES ON LONG TERM VISAS. FOR

EXAMPLE, STUDENTS IN F-2, L-2, OR H-4 STATUS MAY ATTEND A

PUBLIC PRIMARY SCHOOL, AN ADULT EDUCATION PROGRAM, OR OTHER

PUBLIC EDUCATIONAL INSTITUTION WITHOUT REGARD TO THE

RESTRICTIONS OF 214(L). IN ADDITION, SECTION 214(L) DOES

NOT APPLY TO ALIENS ATTENDING PUBLIC SCHOOL ILLEGALLY IN B

STATUS, OR IN SOME OTHER UNLAWFUL STATUS, SUCH AS EWI

(ENTRY WITHOUT INSPECTION).

4. SECTION 214(L) APPLIES SOLELY TO FOREIGN STUDENTS

PRESENTING I-20S FROM PUBLIC SCHOOLS IN THE UNITED STATES.

APPLICANTS PRESENTING I-20S FROM PRIVATE ACADEMIC

INSTITUTIONS AT ANY GRADE LEVEL ARE NOT/NOT COVERED BY

SECTION 214(L). HOWEVER, STUDENTS IN F-1 STATUS

TRANSFERRING FROM PRIVATE TO PUBLIC SCHOOLS MUST MEET THE

REQUIREMENTS OF SECTION 214(L). IF AN F-1 STUDENT

TRANSFERS FROM A PRIVATE ELEMENTARY SCHOOL OR PRIVATE ADULT

EDUCATION PROGRAM TO A PUBLIC ELEMENTARY SCHOOL OR PUBLIC

ADULT EDUCATION PROGRAM, HE/SHE IS IN VIOLATION OF STATUS

AND HIS/HER F-1 VISA IS NO LONGER VALID. LIKEWISE, IF AN

F-1 HOLDER TRANSFERS FROM A PRIVATE TO A PUBLIC SECONDARY

SCHOOL WITHOUT REIMBURSING THE PUBLIC SCHOOL FOR THE

UNSUBSIDIZED COST OF INSTRUCTION, THE STUDENT IS IN

VIOLATION OF STATUS AND HIS/HER F-1 VISA IS INVALID.

5. SECTION 214(L) WENT INTO EFFECT ON NOVEMBER 30, 1996,

AND IT IS NOT RETROACTIVE. THAT IS, 214(L) APPLIES ONLY TO

STUDENTS APPLYING FOR F-1 VISAS, EXTENSIONS OF F-1 STAY, OR

ADMISSION INTO THE U.S. IN F-1 STATUS AFTER/AFTER NOVEMBER

30, 1996. FOREIGN STUDENTS WHO WERE ATTENDING U.S. PUBLIC

SCHOOLS BEFORE THAT DATE AND HAVE CONTINUED IN THE SAME

PROGRAM MAY REMAIN IN SCHOOL WITHOUT PENALTY. HOWEVER, IF,

AFTER NOVEMBER 30, 1996, THE ALIEN APPLIES FOR AN EXTENSION

OF F-1 STATUS, OR DEPARTS THE U.S. AND SEEKS READMISSION IN

F-1 STATUS, OR APPLIES FOR A NEW F-1 VISA, SECTION 214(L)

WILL APPLY.

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ELEMENTARY SCHOOLS

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6. SECTION 214(L) PROHIBITS THE ISSUANCE OF F-1 VISAS TO

APPLICANTS INTENDING TO STUDY IN PUBLIC ELEMENTARY SCHOOLS.

PUBLIC ELEMENTARY SCHOOLS INCLUDE GRADES KINDERGARTEN

THOUGH EIGHT. IN THE UNITED STATES, CHILDREN GENERALLY

ENTER KINDERGARTEN AT ABOUT AGE FIVE AND COMPLETE EIGHTH

GRADE AT ABOUT 14 OR 15. POSTS SHOULD REFUSE APPLICANTS

SEEKING F-1 VISAS TO ATTEND ANY PUBLIC ELEMENTARY SCHOOL

UNDER 214(L) OF THE INA.

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PUBLICLY FUNDED ADULT EDUCATION PROGRAMS

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7. SECTION 214(L) ALSO PROHIBITS THE ISSUANCE OF F-1 VISAS

TO APPLICANTS INTENDING TO ATTEND PUBLICLY FUNDED ADULT

EDUCATION PROGRAMS. PUBLICLY FUNDED ADULT EDUCATION

PROGRAMS INCLUDE ANY ADULT EDUCATION OR TRAINING PROGRAM

OPERATED BY, THROUGH OR FOR A PUBLIC SCHOOL DISTRICT,

AGENCY OR AUTHORITY. THIS PROHIBITION APPLIES REGARDLESS OF

WHETHER THE PROGRAM CHARGES TUITION OR FEES. HOWEVER,

214(L) DOES NOT/NOT APPLY TO POST-SECONDARY SCHOOLS SUCH AS

COMMUNITY COLLEGES WHICH RECEIVE PUBLIC FUNDS, BUT CHARGE

FULL NON-RESIDENT TUITION TO FOREIGN STUDENTS.

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HIGH SCHOOL STUDENTS

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8. SECTION 214(L) RESTRICTS, BUT DOES NOT PROHIBIT, THE

ISSUANCE OF F-1 VISAS TO STUDENTS SEEKING TO ATTEND PUBLIC

HIGH SCHOOLS (GRADES 9 THROUGH 12). POSTS MAY ONLY ISSUE

F-1 VISAS TO FOREIGN STUDENTS INTENDING TO STUDY IN PUBLIC

SECONDARY SCHOOLS IF: (1) THE AGGREGATE ATTENDANCE AT THE

PUBLIC SCHOOL IS NOT MORE THAN 12 MONTHS; AND (2) THE

APPLICANT CAN DEMONSTRATE THAT HE/SHE HAS REIMBURSED THE

SCHOOL FOR THE UNSUBSIDIZED, PER CAPITA COST OF EDUCATION

FOR THE INTENDED PERIOD OF STUDY.

12-MONTH ATTENDANCE LIMIT

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9. POSTS CANNOT ISSUE AN F-1 VISA IF THE LENGTH OF STUDY

INDICATED ON THE I-20 EXCEEDS THE 12-MONTH CUMULATIVE

PERIOD PERMITTED UNDER SECTION 214(L). SIMILARLY, F-1

VISAS TO ATTEND PUBLIC SECONDARY SCHOOLS SHOULD BE LIMITED

TO 12 MONTHS VALIDITY.

10. IT IS IMPORTANT TO NOTE THAT PUBLIC SECONDARY SCHOOL

ATTENDANCE IN A STATUS OTHER THAN F-1 (INCLUDING UNLAWFUL

STATUS), DOES NOT/NOT COUNT AGAINST THE 12-MONTH LIMIT.

ALSO, ATTENDANCE IN F-1 STATUS PRIOR TO THE NOVEMBER 30,

1996 EFFECTIVE DATE OF THE LEGISLATION DOES NOT/NOT COUNT

AGAINST THE 12-MONTH LIMIT. IN ADDITION, CONTINUOUS

ATTENDANCE IN F-1 STATUS THAT BEGAN PRIOR TO NOVEMBER 30,

1996 BUT CONTINUED AFTER THAT DATE WOULD NOT COUNT AGAINST

THE 12-MONTH LIMIT. IF AT SOME POINT AFTER NOVEMBER 30,

1996, THE ALIEN OBTAINED AN EXTENSION OF STATUS, OR

DEPARTED THE U.S. AND WAS READMITTED IN F-1 STATUS, HE/SHE

WOULD BE REQUIRED TO COMPLY WITH 214(L) AND THE ONE-YEAR

LIMIT WOULD BEGIN TO RUN FROM THE DATE OF THE EXTENSION OR

READMISSION IN F-1 STATUS.

REIMBURSEMENT

11. SECTION 214(L) ALSO REQUIRES SECONDARY SCHOOL STUDENTS

IN F-1 STATUS TO REPAY THE SCHOOL SYSTEM FOR THE FULL,

UNSUBSIDIZED, PER CAPITA COST OF PROVIDING THE EDUCATION.

PUBLIC SECONDARY SCHOOLS MUST ACTUALLY COLLECT THE

REIMBURSEMENT BEFORE A VISA CAN BE ISSUED. SCHOOLS ARE

REQUIRED TO INDICATE ON THE I-20 THEIR DETERMINATION OF THE

COST OF INSTRUCTION AND THE AMOUNT THE STUDENT HAS PAID.

THE LAW DOES NOT ALLOW SCHOOLS TO WAIVE THIS REQUIREMENT.

IF THE I-20 DOES NOT PROVIDE THIS INFORMATION, CONSULAR

OFFICERS MAY ACCEPT A NOTARIZED STATEMENT FROM THE

DESIGNATED SCHOOL OFFICIAL WHO SIGNED THE I-20 STATING THAT

THE PAYMENT HAS BEEN MADE, AND THE AMOUNT.

12. THE SCHOOLS ARE RESPONSIBLE FOR DETERMINING WHAT

AMOUNT CONSTITUTES THE UNSUBSIDIZED PER CAPITA COST OF

EDUCATION. COSTS VARY WIDELY FROM ONE SCHOOL DISTRICT TO

ANOTHER (AND SOMETIMES FROM ONE SCHOOL TO ANOTHER WITHIN

THE SAME DISTRICT). HOWEVER, AVERAGES ACROSS THE COUNTRY

RANGE FROM ABOUT $3400 TO MORE THAN $10,000. OBVIOUSLY,

STUDENTS ATTENDING ONLY PART OF THE SCHOOL YEAR WOULD PAY

LESS THAN THE ANNUAL AMOUNT.

13. IN GENERAL, CONSULAR OFFICERS SHOULD ACCEPT THE

SCHOOLS' COST DETERMINATIONS AND NOT INQUIRE INTO HOW THEY

ARRIVE AT THEIR FIGURES. HOWEVER, IF A SCHOOL'S COSTS ARE

SIGNIFICANTLY BELOW AVERAGE (FOR EXAMPLE, LESS THAN

$2,000), CONSULAR OFFICERS SHOULD SEEK ADDITIONAL

INFORMATION FROM THE SCHOOL. IF A REQUEST FOR ADDITIONAL

INFORMATION DOES NOT RESOLVE THE MATTER AND THE SCHOOL'S

ESTIMATED PER CAPITA COSTS APPEAR TO BE UNREASONABLY LOW,

POSTS MAY REFER THE MATTER TO THE DEPARTMENT (CA/VO/F/P AND

L/A).

14. SOME SCHOOLS HAVE ADVISED AMCIT RELATIVES TO BE

DECLARED LEGAL GUARDIANS OF THEIR FOREIGN SCHOOL-AGE

RELATIVES. THE SCHOOL THEN ADMITS THE FOREIGN STUDENT AS A

RESIDENT, WRONGLY ASSUMING THAT THIS WOULD THEN EXEMPT THE

STUDENT FROM THE REIMBURSEMENT REQUIREMENT OF 214(L).

HOWEVER, THE REQUIREMENT TO PAY THE FULL, UNSUBSIDIZED PER

CAPITA COST OF THE SCHOOLING IS A PREREQUISITE TO

ELIGIBILITY FOR F-1 STATUS FOR ALIENS ATTENDING PUBLIC

SECONDARY SCHOOL, AND THE STUDENT'S STATUS AS A RESIDENT OF

THE SCHOOL DISTRICT IS IRRELEVANT. LIKEWISE, THE FACT THAT

THE STUDENT'S U.S. SPONSOR HAS PAID LOCAL PROPERTY/SCHOOL

TAXES DOES NOT FULFILL THE REIMBURSEMENT REQUIREMENT OF

SECTION 214(L).

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STUDENT VISA ABUSERS

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15. INA SECTION 212(A)(6)(G) PROVIDES SANCTIONS AGAINST

FOREIGN STUDENTS WHO VIOLATE THE PROVISIONS OF SECTION

214(L). UNDER SECTION 212(A)(6)(G), A FOREIGN STUDENT IN

F-1 STATUS WHO ATTENDS:

(1) A PUBLIC ELEMENTARY SCHOOL; OR

(2) A PUBLICLY-FUNDED ADULT EDUCATION PROGRAM; OR

(3) A PUBLIC SECONDARY SCHOOL FOR MORE THAN 12 MONTHS OR

WITHOUT REIMBURSING THE SCHOOL FOR THE UNSUBSIDIZED

COST OF INSTRUCTION,

IS EXCLUDABLE UNTIL HE/SHE HAS BEEN OUTSIDE OF THE U.S. FOR

A CONTINUOUS PERIOD OF FIVE YEARS AFTER THE DATE OF THE

VIOLATION. (SEE 9 FAM 40.67.)

16. FOR EXAMPLE, AN F-1 HOLDER WHO TRANSFERRED FROM A

PRIVATE TO A PUBLIC ADULT EDUCATION ESL PROGRAM WOULD BE

BARRED FROM RETURNING TO THE UNITED STATES FOR FIVE YEARS.

SIMILARLY, A FOREIGN STUDENT WHO WAS ISSUED AN F-1 VISA FOR

ONE YEAR OF PUBLIC HIGH SCHOOL AND WHO CONTINUED STUDYING

AT THE HIGH SCHOOL BEYOND THE ONE-YEAR LIMIT WOULD ALSO BE

BARRED FROM RETURNING FOR FIVE YEARS.

17. IT IS IMPORTANT TO KEEP IN MIND THAT NOT ALL STUDENT

VISA VIOLATIONS, AND NOT ALL INSTANCES OF ILLEGAL STUDIES,

ARE SUBJECT TO SECTION 212(A)(6)(G). THE FIVE-YEAR BAR IS

SPECIFICALLY LIMITED TO F-1 HOLDERS WHO VIOLATE THE PUBLIC

SCHOOL PROVISIONS OF SECTION 214(L). THUS, FOREIGN

STUDENTS WHO ARE NOT SUBJECT TO 214(L) ARE NOT SUBJECT TO

212(A)(6)(G). FOR EXAMPLE, AN ALIEN WHO ENTERS WITHOUT

INSPECTION, OR WHO ENTERS ON A B VISA, AND THEN ATTENDS

PUBLIC SCHOOL WITHOUT COMPLYING WITH THE PROVISIONS OF

214(L) IS NOT SUBJECT TO INA 212(A)(6)(G), BECAUSE HE/SHE

WAS NOT IN F-1 STATUS AND THEREFORE WAS NOT SUBJECT TO

SECTION 214(L) TO BEGIN WITH. IN ADDITION, AS 214(L) DOES

NOT APPLY TO PUBLIC SCHOOL ATTENDANCE IN F-1 STATUS PRIOR

TO NOVEMBER 30, 1996, A STUDENT WHO BEGAN PUBLIC SCHOOL

ATTENDANCE PRIOR TO THAT DATE MAY CONTINUE ATTENDING AFTER

THAT DATE WITHOUT BECOMING INELIGIBLE UNDER INA

212(A)(6)(G).

18. IF POSTS HAVE ANY QUESTIONS ABOUT THE APPLICATION OF

SECTION 214(L) OR 212(A) (6) (G) TO A PARTICULAR CASE, PLEASE SUBMIT AN ADVISORY OPINION REQUEST TO CA/VO/L/A.

TALBOTT

03.17.2000