INS on Public School Provisions
January 27, 1997
TO: All Regional Directors
All District Directors
All Port Directors
All Officers in Charge
All Service Center Directors
SUBJECT: Sections 625 and 346 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRA/IRA) of 1996 implementing public school provisions of INA 214(l) and 212(a)(6)(G).
SUMMARY: 1. This wire provides interim guidelines for Sections 625 and 346 of Pub. L. 104-208, which deal with limitations and restrictions on public school attendance by F-1 nonimmigrant students. It discusses implementation of the new provisions on F-1 student status, new INA Sections 214(l) and 212(a)(6)(G). The Service and the Department of State are working on regulations covering these provisions. As the regulations will not be complete in the immediate future, addressees should follow the interim guidelines provided below.
2. Effective November 30, 1996, Section 214(l) prohibits aliens in F-1 status from attending _public elementary schools (grades K through 8), or publicly-funded adult education programs_. Publicly-funded adult education programs mean education, training, English-as-second- language (ESL) or other intensive English programs operated by, through, or for a local public school district, system, agency or authority, regardless whether such program charges fees or tuition. It does not, repeat does not apply to post secondary schools such as public community or junior colleges which receive public funds, but charge full non- resident tuition to foreign students.
3. Effective since November 30, 1996, aliens applying either for change of status to or admission as F-1 students to attend a public elementary school or publicly-funded adult education program, as defined above in paragraph 2 are not eligible_ based on an I-20 issued from such a school or program, regardless of whether it has been approved in the past by the Service to issue such forms. Based on individual circumstances, inspectors may defer inspection to the district with jurisdiction over the alien's intended destination. If inspection is deferred: (1) F-1 elementary school students shall be instructed to provide evidence that they have been accepted by and have the financial means to enroll in, a Service-approved private or parochial elementary school; and (2) F-1 adult education students shall be instructed to provide evidence that they have been accepted by, and have the financial means to enroll in, a service-approved private language, vocational, technical, or nonacademic training school. With respect to instances of an unaccompanied minor F-1 alien, ports shall defer inspection with the instructions cited above if the student is otherwise admissible.
4. Private or parochial elementary and secondary schools, and private language, vocational, technical, or nonacademic training schools which are approved by the Service to issue Form I-20, are not subject to the attendance restrictions specified in new INA Section 214(l), and may continue to issue Form I-20 for purposes of visa processing and entry into the United States of F-1 foreign students to attend such schools. However, F-1 students enrolled in such Service approved private or parochial schools are not authorized, under any circumstances, to transfer to either a public elementary school or publicly funded adult education program, as defined above in paragraph 2. To do so would terminate their F-1 status as specified in new INA Section 214(l).
This also subjects such an F-1 violator to new INA Section 212(a)(6)(G) which requires that such alien remain outside the United States for a continuous period of five years after the date of having violated Section 214(l) by unlawful transfer to a public elementary school or publicly funded adult education program.
5. Effective November 30, 1996, Section 214(l) also places payment requirements on F-1 attendance in public secondary schools (grades 9 through 12) and limits the period of authorized stay to attend such schools as an F-1 foreign student to a cumulative total of 12 months. Therefore, effective November 30, 1996, in order to be approved for change of status (COS) to or admission as an F-1 student to attend a Service approved public secondary school, the alien must demonstrate that he/she has reimbursed the local public school district, system, agency or authority for the unsubsidized, per capita cost or education for the intended period of study.
6. Section 214(l) _does not_ require reimbursement for public secondary school attendance which took place prior to November 30, 1996. Also attendance at a Service approved public secondary school in F-1 status prior to November 30, 1996, _does not_ count against the 12-month limit. Likewise, public secondary school attendance in another lawful nonimmigrant status _does not_ count against the 12- month limit.
7. Effective November 30, 1996, any nonimmigrant applying for COS to or admission as an F-1 student to attend a Service approved public secondary school must provide evidence, either via a brief statement with "notarized" signature of the designated school officer [sic] (DSO) or page 1 of the alien's Form I-20 under the "remarks" position in block 9 or a letter (on school board/system letterhead) with notarized signature of the DSO, which attests that the alien has reimbursed the local public school district, system, agency or authority for the unsubsidized, per capita cost of education for the intended period of study. Also, upon admission or a granting of COS, such students are not eligible for duration of status D/S nor for the 60 day grace period as provided in 8 CFR Section 214.2(f)(5). Such aliens may only be authorized to stay as an F-1 foreign student until either the completion date on their Form I-20, or for a period not to exceed twelve (12) months, whichever is less.
8. Effective November 30, 1996, F-1 students who transfer from a Service approved private or parochial secondary school (grades 9 through 12) to an approved public secondary school, must also fulfill the requirements of Section 214(l) that they have reimbursed the local public school district, system, agency or authority for the unsubsidized, per capita cost of education for the intended period of study. Refer to paragraph 7 above for what may serve as acceptable evidence from the local public school system regarding the required reimbursement. Failure to meet the requirement of 214(l) when transferring to a public secondary school would terminate such alien's F-1 status and, under Section 212(a)(6)(G) would require such alien to remain outside the
United States for a continuous period of five years after the date of having violated Section 214(l).
9. With respect to applications for COS to F-1 status to attend a public secondary school that are adjudicated through the Service Centers on or after November 30, 1996, it is likely that a majority of Service approved public school systems are not aware of the attendance limitations and reimbursement requirements concerning F-1 eligibility for public secondary school attendance under new INA Section 214(l). Service Centers may continue to accept Form I-539 applications for adjudication which do not address the issue of payment/reimbursement, and instruct the applicant to provide additional evidence as described above in paragraph
10. It is the local public school system's responsibility to determine what amount constitutes the "unsubsidized per capita cost of education" as required in Section 214(l). It should be noted that this calculation may differ from school district to school district throughout the country. In all cases, however, it is the responsibility of the prospective F-1 student to demonstrate that he/she has reimbursed the local educational agency in accordance with new INA Section 214(l).
11. In cases of deferred inspection as provided above in paragraph 3, or for COS in which a Form I-20 issued by a public secondary school appears to be inconsistent with new INA Section 214(l), Service officers may request information they deem necessary and relevant for properly determining the prospective student's eligibility for admission or COS. For example, Service officers should deny admission if, at the deferred inspection, they determine that an I-20M/N has been issued for the purpose of obtaining admission or COS to M-1 status for what is clearly an academic course or program of study. Similarly, adjudications officers may properly deny an application for COS in cases where they determine that the reimbursement requirements of the statute have not been satisfied.
This wire has been coordinated with HQ Office of Field Operations.
/s/
Louis D. Crocetti, Jr.Associate Commissioner
Examinations
4RE7001