DOS Cable on IIRAIRA 96 Changes to Student Visas
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMEMBASSY ASMARA
AMEMBASSY SARAJEVO
AMEMBASSY BUJUMBURA
INFO USINS WASHDC
UNCLAS STATE 229829
VISAS
E.O. 12958: N/A
TAGS: CVIS
SUBJECT: P.L. 104-208 UPDATE NO. 8 - INA 214 (l) AND
212(a)(6)(G) - Public School Students
REF: (A) STATE 210953, (B) STATE 208799, ( C) 219622, (D) 225256, (E) 225321
Summary
1. This cable is number 8 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). Among other things, IIRAIRA 96 established two new sections of law that directly affect foreign students. The texts of the new student provisions, which are found at 214(l) and 212(a)(6)(G), are set forth below with a discussion of their effect. As the new provisions will require coordination between the Department and other agencies, we cannot provide specific operations instructions a this time. Consular officers should not apply the provisions of 214(l) or 212(a)(6)(G) until specific procedural guidance has been made available.
Foreign students in public schools
2. Section 214 is amended by adding the following:
Begin text:
(l)(1) an alien may not be accorded status as a nonimmigrant under section 101(a)(15)(F)(i)(K) in order to pursue a course of study -
(A) at a public elementary school, or in a publicly funded adult education program; or
(B) at a public secondary school unless -
(i) The aggregate period of such status at such a school does not exceed 12 months with respect to any alien, and (ii) the alien demonstrates that the alien has reimbursed the local educational agency that administers the school for the full, unsubsidized per capita cost of providing education at such school for the period of the alien’s attendance.
(2) An alien who obtains the status of a nonimmigrant under section 101(a)(15)(F)(i) in order to pursue a course of study at a private elementary or secondary school, or in a language training program that is not publicly funded shall be considered to have violated such status, and the alien’s visa under section 101(a)(15)(F) shall be void, if the alien terminates or abandons such course of study at such a school and undertakes a course of study at a public elementary school. In a publicly funded adult education program, in a publicly funded adult education language training program, or at a public secondary school (unless the requirements of paragraph (1)(B) are met).
(Amended by section 346 of Pub. L. 104-208, 9/30/96)
3. Section 212(a)(6) is amended by adding the following:
Begin Text:
(c) Student visa abusers. - An alien who obtains the status of a nonimmigrant under section 101(a)(15)(F)(i) and who violates a term or condition of such status under section 214(l) is excludable until the alien has been outside the United States for a continuous period of 5 years after the date of the violation.
Discussion of new 214(l)
4. Under the new provisions, an alien cannot, under any circumstances, receive an F-1 visa to attend a public elementary school or a publicly funded adult education program. An alien can receive an F-1 visa to attend a public secondary school. If the school has been: (1) reimbursed for the full, unsubsidized per capita cost of the alien’s education and, (2) the alien’s tenure at the school (in F-1 status) is limited to a total of one year or less. The statute pertains only to persons applying for F-1 status. It does not affect aliens attending public schools/programs on J, F-2, H-4, L-2, B-2, or any other NIV status allowing elementary or secondary school attendance.
5. Clearly, the new law will have significant impact on alien students by restricting foreign enrollment at public schools in the United States. Private schools at the elementary level will likely benefit from an increase of foreign students moving out of the public school sector. Although we are unable at this time to anticipate what the final procedures for administering the student provisions of IIRAIRA 96 will be, we anticipate the Immigration and Naturalization Service necessarily will have to structure new regulations and operating instructions in such a way as to permit the issuance of I-28s only after the alien has met the requirements of 214(l). Under such a scenario, the presentation of an I-28 issued by a public school would be prima facie evidence of an alien having met the requirements of 214(l).
6. Many questions remain to be answered in connection with the administration of 214(l). For instance, it is unclear precisely what constitutes a “full, unsubsidized per capita cost” for a foreign student’s enrollment in a school or program.
7. Section 214(l) becomes effective November 30, 1996, 60 days after IIAIRA 96’s enactment. It applies only to individuals who seek to obtain F-1 status after that date, or whose F-1 status is extended after that date. Persons who are issued F-1 visas before November 30, 1996 are not, repeat, not subject to the provisions of 214(l). However, applicants should be advised that they will become subject to 214(l) should they file for an extension of status, or apply for a new F-1 visa after November 30, even in connection with the same academic program.
8. Paragraph 2 of section 214(l) prohibits foreign students attending private schools in F-1 status from transferring into public schools or publicly funded programs unless they meet the same payment requirements and the limitations as F-1 visa applicants. The statute not only prohibits a transfer in such instances, it also automatically voids the visa of an alien who violates the conditions of 214(l). Further, section 212(a)(6)(G) renders an F-1 alien student excludable as a “student visa abuser” if he/she violates a term or condition of section 214(l). An alien found ineligible under 212(a)(6)(G) must remain outside the United States for a continuous period of five years before he/she will be qualified to apply for another visa. Class ineligibility codes are being amended to comply with the new provisions of law.
9. The Department will be working with INS to develop regulations and procedures for implementing the new provisions. We expect to have instructions to posts before the effective date. In the meantime, posts should continue to process F-1 visa applications under existing instructions.
10. Minimize considered.
Christopher