BEGINNING THE NONIMMIGRANT

ALPHABET Bs, Fs and Js

By

Allan H. Wernick, Esq.

Professor, Baruch College, City University New York (CUNY) Director of CUNY Citizenship Now!

New York City.

Leslie K.L. Thiele, Esq.

Whiteman Osterman & Hanna LLP Albany

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© 2014 Whiteman Osterman & Hanna LLP. All rights reserved

OVERVIEW OF THE VISA PROCESS

Nonimmigrant VisaImmigrant Visa

LPR / “Green Card” Citizenship3-5 yrs.1-? yrs.

B-1/2 Visitor for Business/PleasureE-1/2 Treaty Trader/InvestorE-3 Specialty Worker – Austr. F -1 Student - OPTH-1B Specialty WorkerH-2 Temporary WorkerH-3 Trainee

J-1 Exchange Visitor

K-1 Fiance

L-1 Intracompany Transferee

M Vocational Student

O-1 Alien of Extraordinary Ability

P-1/2/3 Performers

R-1/2 Religious Worker

TN Trade NAFTA

FAMILY-BASED CATEGORIESIR Immediate relativesFB-1 Unmarried sons/daughters of USCsFB-2 Spouses/children of LPRFB-3 Married sons/daughters of USCsFB-4 Brothers/sisters of USC

EMPLOYMENT-BASED CATEGORIESEB-1 Outstanding researchers

Aliens of extraordinary abilityMultinational managers

EB-2 Advanced degrees/NIW EB-3 Professionals

2 yrs. experience Other workers

EB-4 Special immigrants/religiousEB-5 Investors

3 yrs. if by marriage to U.S. citizen

5 yrs. for everyone else

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INTRODUCTION TO BUSINESS AND OTHER VISITORS

by

Prof. Lenni Beth Benson

New York Law School New York City

and

Matthew D. Goldsmith, Esq.

Garganigo, Goldsmith & Weiss

New York City

Amended by Allan Wernick, May 2014

This article was originally used in the New York State Bar Association CLE program, Immigration Law - Basics and Beyond, spring 2004.

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Introduction to Business and Other Visitors By Lenni Benson1 and Matthew Goldsmith2

Business Visitor Visa (“B-1Visa”)- The B-1 visa is the most used, but least understood visa. It permits a person to come to the United States temporarily for attending business meetings or trade shows, buying goods, conducting research, or other commercial activities.3 But understanding what is permissible in this category is difficult. It is a grey area of the law and lawyers should be very cautious about advising people to rely on this category. Still, it is usually fairly easy to obtain and it serves millions of visitors every year who seek to enter the U.S. for brief stays to conduct a variety of business activities.

Business Visitor Visa (“B-2Visa”)- This is the most popular method of entering the U.S. and is reserved for tourism and visiting family or friends. The holder of this visa is usually admitted for six (6) months. The B-2 requires either a) a visa stamp or b) eligibility to use the visa waiver program.4 The visa waiver program permits admission for up to 90 days of people from certain countries for business or pleasure without a B-1 or B-2 visa stamp.5 Refer to appendix A for the full list of countries participating in the visa waiver program. While the visa waiver program may be convenient and efficient, it can also result in a loss of procedural rights at the border. An individual who use the visa waiver gives up a right to a hearing on his or her admissibility to the U.S. Moreover, the individual cannot extend his or her stay in the U.S. beyond the authorized 90 days and cannot change status from the waiver category to a different non-immigrant visa category. There is a very narrow exception to this harsh no extension, no change rule for people who marry within the U.S. However, marriage after using the visa waiver to enter the U.S. can raise issues of visa fraud because it may appear to the government that the individual intended to permanently remain in the U.S. – an intention which is in conflict with the B visa category. The Statutory Definition of the B Visa : The Immigration and Nationality Act (“INA”) provides that the B visa is available for: “An alien (other than one coming for the purpose of study or performing skilled or unskilled labor or as a representative of foreign press, radio, film, or other foreign

1 Professor and Co-Director Justice Action Center, New York Law School. 2 Garganigo, Goldsmith & Weiss, NYC; J.D. 2005, New York Law School 3 INA § 101(a)(15)(B). While the INA is codified in Title 8 of the U.S. Code most government and experienced immigration attorneys cite only to the provisions of the INA. If you are going to work in this field you will need to familiarize yourself with the INA section numbers. 4 INA § 101(a)(15)(B). 5 INA § 217.

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information media coming to engage in such vocations) having a residence in a foreign country, which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure.”6

Relevant Regulatory and Administrative Guidance Materials5 Both published regulations and agency commentary on the statutory provisions guide

government officials. The regulations can be found in title 8 of the Code of Federal Regulations for the Department of Homeland Security and in Title 22 for the Department of State. One of the most useful regulatory sources is the Foreign Affairs Manual. This manual is a commentary on the regulations and is the “bible” of the consular officers overseas.

The following are requirements and time limitations for applicants for B visas not

from a country participating in the visa waiver program:

1) Alien (other than student, one performing skilled or unskilled labor, or representative of foreign information media).

2) Has a residence in a foreign country (need not have his own home) but must be actual dwelling place in fact.

3) Has no intention of abandoning foreign residence. 4) Visiting temporarily for business or pleasure. 5) Initial Admission- 1 year maximum with 6 month extensions. B-2’s are

automatically admitted for 6 months in most circumstances. The Attorney General has issued proposed regulations that would give greater flexibility to first line inspectors by eliminating the automatic 6 month grant.7Additional Criteria

Additional criteria:

1) Intention to depart at expiration of requested stay a) must show employment, social ties to residence abroad. b) may require posting of bond with DD at port of entry.

2) Permission to enter foreign country at end of stay. 3) Adequate financial arrangements to carry out purpose of visit. For example,

does the individual have money or proof of support from friends and relatives in U.S. or abroad? Are the ties between the sponsor and the applicant sufficient to ensure support?

4) Documentation establishing the previous criteria. General concerns:

The DHS is concerned about the “revolving door problem” where an applicant may use temporary visa as a way to create permanent residency by leaving and returning every 6 months. You need to carefully question clients about the long and short term

6 INA §101(a)(15)(B), 8 USC §1101(15)(B). 7 INA §101(a)(15)(B); 8 USC §1101(15)(B); 22 C.F.R. § 41.31; 9 FAM §41.31

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goals. Abuse of the B visa may prevent the individual from obtaining a more flexible nonimmigrant visa or permanent residence.

Additionally, before September 11, 2001 many aliens would enter the United States with a B visa stamp and would subsequently adjust their status to that of a student visa (F ,J or M) while in America. This is apparently how some of the terrorists obtained legal status in the United States. Today, a person entering the U.S. as a B/1-B/2 can no longer begin to attend school as an F-1/M-1 without first obtaining a change in status in the U.S. or must separately apply for the F/M visa abroad at their foreign consulate. If a student begins school with B/1-B/2 status he will be denied a change of status to a F/M.

Permissible B-1 Activities8 An applicant for B-1 status should not play to be providing labor in the U.S. or for the purpose of obtaining or engaging in employment while in the United States. Nonetheless, it may be used to meet and interview colleagues in one’s field, or to use the U.S. operations of a company. An individual may enter the U.S. in B-1 status to:

- Engage in commercial transactions that do not involve gainful employment in the U.S.;

- Negotiate contracts; - Consult with business associates; - Litigate; - Participate in scientific, educational, professional or business

conventions, conferences, or seminars; - Undertake independent research.

Canadians have special additional uses of the B-1 visa due to the provisions of NAFTA. Aliens permitted to come to the U.S. in B-1 status for employment purposes include:

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- Ministers on evangelical tour, missionary workers, and philanthropic workers;

- Members of boards of directors of U.S. corporations may enter the United States to attend a meeting of the board or to perform other functions derivative of board membership;

- Personal or domestic servants of the United States residing abroad or temporarily assigned to the Untied States;

- Certain professional athletes; and

8 9 FAM 41.31 9 9 FAM 41.31

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- Investors seeking investment in the U.S. which would qualify them for the E-2 nonimmigrant classification, as long as they do not perform productive labor or actively participate in the management of the business prior to being granted E.2 status.

Permissible B-2 activities: 10

- Tourists; - social visits to friends/relatives; - health purposes; - participants in conventions of social organizations; - participants in amateur musical, sports or similar events with no

remuneration; - Dependants of U.S. Armed Forces Personnel; - Accompanying D or B-1 aliens; and - If coming to marry a U.S. citizen but will depart.11

B-1 in lieu of H-1B or H-3

This is a particularly important current subject because Congress limits the number of H-1B visas each year. This year, the category became oversubscribed in February of the fiscal year which runs from October 1 to September 30 of each year. Given the demand for H-1B visas, in some limited situations, an employer may be able to take advantage of the B-1 in lieu of H-1B. But abuse of this category can result in permanent bars for the alien and possible liability for the employer.

U.S. companies desiring to bring overseas workers to the United States on short notice, for brief periods of stay, to assist with important technical projects or to participate in training programs have often utilized these B-1 classifications. The B-1 professional or trainee cannot receive a salary or other remuneration from a U.S. source except for an expense allowance or reimbursement for incidental expenses. The B-1 trainee must present evidence that the training is not available in his or her home country, that the training will benefit his or her career abroad, and that the training never includes productive employment nor displaces a U.S. worker. ______________________________________________________________________

10 9 FAM 41.31 11 Using the B-1 or B-2 and subsequently marrying a permanent resident or a U.S. citizen is a complex issue. Individuals may be refused entry because the admissions officer does not believe they have temporary intent.

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Procedures for obtaining B-1 and B-2 Visas

An application for a B-1 or B-2 visa is submitted directly to an American consulate abroad with Form DS-156 and, if needed, Form DS-157, supporting documents, the foreign national’s passport, photo, and the required visa fee. You can locate the forms on the Department of State website listed in Appendix B. There are no numerical limitations on B visa issuance. Extension of B-1 and B-2 status applications may be submitted to a service center for good cause using form I-539. A foreign national admitted to the United States, in another status may apply to change status to B-1 or B-2. Similarly, a foreign national in B-1 or B-2 status may apply to change status to another nonimmigrant classification or apply for adjustment of status to a lawful permanent resident.

Every U.S. consulate has unique procedures. For example the U.S. consulate in Addis Abada, Ethiopia, a country with a high visa abuse rate, the applicant must present direct evidence of social, family, and economic ties to Ethiopia, but at the consulate in Brussles, Belgium, a visa waiver participant with low abuse rates, the requirements are much less demanding. Thus, you should research that consulate and network with experienced practitioners and consult AILA, NY State Bar, etc, to gain insight from people. Also, refer to appendix B where I have listed many relevant websites and additional legal sources which can assist you and answer many of you questions. Changing or Extending Status – 30/60 day rule In determining whether a misrepresentation has occurred following an earlier admission, the consular officer applies the 30/60 day rule which limits the consideration of a potential misrepresentation by the applicant. If the applicant violated his or her nonimmigrant status by adjusting status or by seeking unauthorized employment within 30 days of admission, a presumption arises that the applicant misrepresented his or her intention in seeking a visa or admission. If the violation occurs more than 60 days after admission, such conduct is not considered to result in ineligibility

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APPENDIX A

Visa Waiver Program – Participating Countries

Andorra Iceland Norway Australia Ireland Portugal Austria Italy San Marino Belgium Japan Singapore Brunei Liechtenstein Slovenia Denmark Luxembourg Spain Finland Monaco Sweden France The Netherlands Switzerland Germany New Zealand United Kingdom The participating countries change frequently and www.state.org updates the list regularly. Additionally, starting October 26, 2004, all of the participating countries designated are required to issue machine-readable passports and if they do not, no visa will shall be available.

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APPENDIX B

Additional Immigration Law Sources

Web Sites www.aila.org American Immigration Lawyers Association

www.uscis.gov U.S. Citizenship and Immigration Services (USCIS) www.state.gov U.S. department of State

Books Fragomen, Austin T., Immigration Law and Business. (1983 and updated editions). Gordon, Charles, Mailman, Stanley and Yale-Loehr, Stephen,. Immigration Law and Procedure, (2003).

Kurzban, Ira J., Immigration Law Sourcebook., (2003).

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Visa Waivers101

Leslie K. L. Thiele, Esq.

February 12, 2014

Entry without a Visa (Stamp)

NORMAL RULE: NO ENTRY TO THE US WITHOUT A FORMAL VISA APPLICATION AND ENTRY VISA STAMP

• Many other countries permit short-term visits without visa formalities

1988: CAUTIOUS START TO “VISA WAIVER PROGRAM” (UK)

• Stays up to 90 days without formalities B visa applications & entry visa stamp • Still a B visa – but without the stamp (WT, WB)

• Available to countries which – among other requirements:

- grant visa-less entry to US citizens:

- issue e-Passports / track and report lost & stolen passports

- have low B visa refusal rate (less than 3%); low with low overstay rates

- solid records of law enforcement, border security, counterterrorism

2014: 38 COUNTRIES NOW PARTICIPATING

• Most of Europe; Greenland, Australia, South Korea, Japan; most recently Chile

• Uruguay and Argentina revoked in 2002-3 financial crisis

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ESTA Program

2008: ADDITIONAL FORMALITIES ADDED FOR TRACKING PURPOSES

• ESTA: Electronic System for Travel Authorization

• Electronic preregistration at least 72 hours in advance of travel by completion of the USCIS I-94W admission record on-line

• Allows prescreeing of traveler against do-not-fly and other banned person lists

• Valid for two years or until traveler’s passport expires

• Does not guarantee admission; only right to board transit to the US

So What’s Not to Like? .UNEXPECTED PITFALLS

• 90 days, PERIOD. Cannot extend, cannot change to other visa status in the US

Exceptions: Marriage to a USC, application for asylum

• Denial of entry at border = no right to contest removal

• Will need to travel on B visa in the future (rare exceptions)

• Unpublished limits on use: CBP limits of 90 days/year

TRAVEL TO CONTIGUOUS TERRITORY MAY NOT EXTEND STAY• Extension of 90-day limit by brief visit to Canada/Mexico not possible

Will be considered part of 90-day period of stay

• Longer periods outside US or from non-contiguous territory may extend period

MISUNDERSTANDING OF LIMITS BY TRAVELERS• B visa equivalent: subject to same limitations on activities

• WB = Business activities, NOT “work”

WT = Tourism and personal pursuits, no “jobbing”

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Summary MANY ADVANTAGES TO VISA WAIVER / ESTA PROGRAM

• Simplifies short-term business & tourist travel

• Reduces bureaucratic delays and visa administration costs

.ENJOY THE BENEFITS, BEWARE OF THE LIMITATIONS • Don’t overstay: 90 days, PERIOD.

• Beware of the limits to use: Use B visa for extended/frequent stays

• Changes of plans will require travel home for new visa

Useful Websites

US Dept. of Statewww.travel.state.gov

Direct link to Visa Waiver program description:http://travel.state.gov/content/visas/english/visit/visa-waiver-program.html#reference

ESTA Informationhttps://esta.cbp.dhs.gov/esta/

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Overview

In order to increase efficiency, reduce operating costs and streamline the admissions process, U.S. Customs and Border Protection has automated Form I-94 at air and sea ports of entry. The paper form will no longer be provided to a traveler upon arrival, except in limited circumstances. The trav-eler will be provided with a CBP admission stamp on their travel document. If a traveler needs a copy of their I-94 (record of admission) for verification of alien registration, immigration status or employ-ment authorization, it can be obtained from. www.cbp.gov/I94.

Frequently Asked Questions

What is a Form I-94? Form I-94 is the DHS Arrival/Departure Record issued to aliens who are admitted to the U.S., who are adjusting status while in the U.S. or extending their stay, among other things. A CBP officer gen-erally attaches the I-94 to the non-immigrant visi-tor’s passport upon U.S. entry. The visitor must exit the U.S. on or before the departure date stamped on the I-94.

How will the new I-94 automation impact inter-national travelers’ entry to the U.S.? I-94 automation will not impact a traveler’s ability to enter the U.S. CBP will continue to create an I-94 record for all travelers who require one, but the paper form will be created in an electronic format and not provided to the traveler. If a traveler re-quires a paper version of Form I-94, it will be available at www.cbp.gov/I94

Will CBP provide a traveler with any documen-tation or evidence showing status and time al-lowed in the U.S.? Yes. CBP will provide each traveler with an ad-mission stamp that is annotated with date of admis-

For more information on I-94 automation or any CBP related questions, visit www.CBP.gov .

3/2013

I-94 Automation

sion, class of admission and admitted until date. The electronic arrival/departure record can be obtained at www.cbp.gov/I94.

Will travelers need to do anything differently when exiting the U.S.? How can they be sure their departure will be recorded properly with this new the I-94 automation process? Travelers will not need to do anything differently upon exiting the U.S. Travelers issued a paper Form I-94 should surrender it to the commer-cial carrier or CBP upon departure. The departure will be recorded electronically with manifest infor-mation provided by the carrier or by CBP. If travel-ers did not receive a paper Form I-94 and the record was created electronically, CBP will record their de-parture using manifest information obtained from the carrier.

How does a traveler revalidate a visa without their I-94? The I-94 admission record is created electronically and maintained in CBP systems. CBP will verify the I-94 electronically to re-validate an expired visa if the traveler meets the conditions of automatic revali-dation. If entry occurred prior to automation, a paper form must be presented in order to comply with vali-dation requirements. For more information about automatic revalidation go to http://www.cbp.gov/linkhandler/cgov/travel/id_visa/revalidation.ctt/revalidation.pdf.

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Will CBP still issue a paper Form I-94 once the automation begins? No. Rather than distributing a paper Form I-94, CBP will scan a traveler’s passport, generating an electronic arrival record with data elements found on the current paper Form I-94. CBP will make the electronic I-94 available at www.cbp.gov/I94. Travelers may visit this website to print their elec-tronic I-94 number before applying for immigra-tion or public benefits, such as a driver’s license or a Social Security number.

Since automation only affects air and sea arrivals, a paper Form I-94 is still issued at the land border ports of entry. Also, CBP intends to continue to provide a paper Form I-94 to certain classes of aliens, such as refugees, certain asylees and parolees, and whenever CBP determines the issuance of a paper form is appropriate.

What if a traveler does not have a foreign pass-port for CBP to stamp? Individuals without a foreign passport will be sent to CBP’s secondary inspection upon arrival into the U.S., where they will receive their electronic I-94 number. These individuals will be issued a pa-per I-94 with the pre-printed number crossed out, and the actual electronic I-94 number handwritten upon it.

Employers and agencies can expect refugees, asylees, parolees and others who do not have any other travel document to have these I-94s.

What should a traveler do if he or she was ad-mitted incorrectly to the U.S.? If an applicant was admitted incorrectly to the U.S., the applicant should visit a local CBP De-ferred Inspection Site or port of entry to have his or her admission corrected. A list of Deferred In-spection Sites and ports of entry can be found at www.cbp.gov, under the “Ports” link at the bottom of the page.

If an applicant received an incorrect I-94 from U.S.

Citizenship and Immigration Services, the applicant should refer to Form I-102 available at www.uscis.gov/forms.

Will the process help expedite passenger processing time? The I-94 automation will expedite passenger processing. CBP automated the I-94W process in 2010, which inde-pendent studies show has resulted in an approximate 20-second time savings per passenger. CBP estimates that I-94 automation will result in similar time savings.

What is the I-94 website (www.cbp.gov/I94)?

Travelers may visit www.cbp.gov/I94 to retrieve their electronic I-94 number. Upon entering the U.S., travelers will receive a paper with instructions on how to access the website.

For more information on I-94 automation or any CBP related questions, visit www.CBP.gov.

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Individuals can visit www.cbp.gov/I94 to retrieve a copy of their electronic Form I-94.

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F-1 STUDENT IMMIGRATION ISSUES (and Some Information about J-1 Exchange Visitors)

Excerpts of a December 2003 Teleseminar

conducted by

Stephen Yale-Loehr and Ellen Badger1

Revised and updated by Allan Wernick May 2014

This article was originally used in the New York State Bar Association CLE program, Immigration Law - Basics and Beyond, spring 2004.

1 Stephen Yale-Loehr is co-author of Immigration Law and Procedure, the leading 20-volume immigration law treatise, published by LexisNexis. He is also co-author of the J Visa Guidebook, published by LexisNexis. He also teaches immigration and asylum law at Cornell Law School, and is of counsel at Miller Mayer in Ithaca, NY. Ellen Badger is the former Director of International Student and Scholar Services at Binghamton University, State University of New York, where she supervised programs and services for nearly 1,200 international students and scholars. 19

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OVERVIEW OF F AND J VISAS AND ADMISSION PROCESS F-1 (Student) Status: Immigration and Nationality Act (INA) § 101(a)(15)(F) allows F-1 status to an alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program in the United States. Spouses and Minor Children of F-1s: Spouses and children can enter as F-2s and F-3 classification exists for Canadian or Mexican commuter students, meaning they live in Canada or Mexico but commute to school in the US. Steps Involved for an International Student to Attend a U.S. University on an F Visa: The first step is for the student to file an application for admission with the particular U.S. university or universities that the student would like to attend. At many universities, the student will be able to file either a paper application or an on-line application via the web. The student will be required to present the school with evidence of his or her academic history, English proficiency, and financial support, along with any other documents required by the school. If the student meets the admissions criteria for that school, a formal letter of admission will be issued. If the student is outside the United States, the university will also issue a SEVIS I-20. Student and Exchange Visitor Information System (SEVIS) Admission of the F-1 is the point where SEVIS begins. SEVIS stands for Student and Exchange Visitor Information System (SEVIS) and is under the federal jurisdiction of the Department of Homeland Security. Schools must first be approved by the DHS to access the SEVIS system and be able to issue I-20s. Separately, schools must have the approval of the Bureau of Educational and Cultural Affairs of the U.S. State Department to access the J side of SEVIS. SEVIS became available to schools in July 2002 and became mandatory for schools to use in late January 2003. SEVIS is a database that allows for record creation, record edits, and the reporting of “events.” It is a tracking system used by the DHS and the DOS, and it provides schools with the means for printing I-20s for F and M students and their dependents. Many people think that SEVIS came about as a direct result of the attacks of September 11, 2001, but it was actually part of older legislation, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, also known as IIRAIRA. In that legislation, Congress mandated a tracking system for F students, based on concerns that emerged from the first World Trade Center attack in 1993. How Do People Actually Get a Visa at a U.S. Consulate Overseas? Students may apply for a visa abroad as early as 90 days before the start date on their I-20. Before Congress passed the USA Patriot Act, there was a relatively short list of requirements for a student or scholar seeking a F visa to enter the United States. Those requirements were:

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· Presenting an I-20 · Proof of admission and English proficiency (or exemption)0 · Proof of ability to pay · Academic credentials · Intent to return home Those requirements still exist, but they have been joined by new requirements. They include: • Requirement for a personal interview · Security clearances (name checks) · Issues for individuals from countries with state-sponsored terrorism and males aged 16-45

from certain countries · Sensitive Areas of Study: The Technology Alert List (TAL) · SEVIS I-901 fee receipt (fee is $200) Since August 1, 2003, U.S. consulates and embassies worldwide have been required to conduct interviews for virtually all non-immigrant visa applicants, with only very limited exceptions. This has resulted in situations where there may be lengthy delays in obtaining appointments. Thus, it is extremely important for the student to apply for the visa at the earliest permissible date. Security Checks and Clearances: As background, just because a student has an I-20 form, has proof of ability to pay for college, and can show an intent to return home after finishing his or her studies doesn't mean he or she will actually get a student visa. A consular officer also has to make sure the student is not inadmissible on some other ground. Since 9/11, two types of inadmissibility grounds have received renewed scrutiny: security concerns and criminal background checks. These are both generically called “visa lookouts.” State Department consular posts use a computer program called the Consular Lookout and Support System (CLASS) to check names and visa eligibility of all visa and passport applicants. After Making it through the Security Background Checks, What Happens When a Student Enters the United States for the First Time? The student can expect to go through both a customs and immigration inspection at the U.S. port of entry conducted by DHS Customs and Border Protection (CBP) officials. The student will be expected to present his or her passport and I-20. The student no longer completes an I-94 Arrival/Departure card unless arriving at a land border. Arrival departure records are now kep electronically. The student may be asked to describe his or her purpose for entering the United States. The CBP official should enter the student’s arrival into SEVIS, which is available either at their inspection station, at a special “students only” inspection lane, or in a secondary inspection area. The I-20 will be stamped and returned to the student, the I-94 will be stamped, separated, and the departure portion will be returned to the student.

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What Happens When the Student Arrives on Campus for the First Time? Students must report to the Designated School Official or DSO of the school they are authorized to attend, based on the I-20 used to enter the United States. Universities generally let students know the date and method for reporting well in advance. The DSO is usually found in an international student office, but at schools with small international student populations, the DSO may be in an admissions office, registrar’s office, or advising office. Federal regulations permit both F visa holders entering the United States for the first time to arrive up to 30 days before the start date on I-20. Once the student has reported and registered, their registration must be reported in SEVIS no later than 30 days after their start date. The DHS reports to schools those Fs who enter the United States using the school’s I-20. Schools must report any “no shows” no later than 30 days after the start date for that term. Who Has Access to the SEVIS Database? This is a password-protected system with very limited access. The DHS and the DOS have access to SEVIS. Anyone at a university who is a designated school official (F program) has access to SEVIS. Faculty, students, and employers do not have access to SEVIS. Changing Status to Student Status: If a person in another status wants to change to become a student, he does it by applying for a change of status to F-1 or J-1. He must send Form I-539 to the immigration service center with jurisdiction over the individual’s place of temporary residence in the United States. Accompanying the Form I-539 must be:

· the DHS filing fee;

· the original I-20A-B issued by the school the student wishes to attend;

· evidence of the student’s ability to pay for his or her tuition, fees, and living expenses;

· a copy of the student’s Form I-94, copied front and back;

· evidence establishing that the student has maintained lawful nonimmigrant status since entry; and

· evidence of a residence abroad that the student has no intention of abandoning.

· Evidence of SEVIS I-901 fee payment receipt

The DHS often is skeptical of applications to change to student status because the immigration agency believes that such requests sidestep the usual student visa issuing process conducted at U.S. consulates abroad. In some instances, foreign nationals may come to the United States in B-2 nonimmigrant visitor for pleasure, intending not to be visitors but, instead, to seek admission to a U.S. school. Because the government exercises discretion in deciding whether to grant a change of status, the DHS scrutinizes B-2 to F-1 change requests for evidence of the applicant’s preconceived intent to apply for a change to student status.

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One of the most frequently cited reasons for denying a change to student status is the DHS’ contention that a rapid sequence of events following (and in some cases even preceding) the applicant’s entry into the United States establishes the applicant’s preconceived intent to seek student status. The DHS looks closely at dates: the date of the applicant’s admission to the United States; the date on which the Form I-20A-B was issued; the date(s) on which evidence of financial ability was generated; and the date on which the applicant submitted his or her Form I-539 application seeking a change of status. For example, assume the individual enters the United States on June 1 in B-2 visitor for pleasure status, authorized to remain for six months. On June 20, a school issues a Form I-20A-B to the individual. On June 25, the individual opens a U.S. bank account and transfers into the account substantial funds from his or her home country. On July 1, the foreign national applies to the USCIS for a change to student status. Often USCIS will ask for a letter from the school stating the date the school was first contacted by the student regarding admission. In all likelihood, the DHS will view such a scenario as a classic case of preconceived intent to be a student, as revealed by actions occurring in rapid succession on the heels of the applicant’s arrival in the United States. The DHS may contend that the applicant misrepresented his or her true intent at the time of entry as a B-2 visitor and, therefore, has failed to maintain lawful nonimmigrant status as a B-2 visitor. Even if the applicant allows several months to elapse following his or her arrival before initiating the steps described above, the paper trail will suggest to the DHS that the applicant’s true intention at the time of entry was to be a student. If the applicant took any of these steps shortly after entering the United States, the DHS probably will deny the change of status request on a similar discretionary basis --failure to maintain lawful status. It certainly is possible to change from one nonimmigrant status to F-1. However, success occurs often where the applicant is able to show that he or she came to the United States in a different nonimmigrant status, maintained that status, and now is seeking a change to F-1 or J-1 because of a subsequent change in circumstances. The greater the interval between the applicant’s last arrival in the United States and the change in circumstances prompting the request for student status, the greater the likelihood that the DHS will see the request as genuine. The regulations stipulate that a non-citizen who is admitted as, or changes status to, a B-1 or B-2 nonimmigrant on or after April 12, 2002, or who files a request to extend the period of authorized stay as a B-1 or B-2 nonimmigrant on or after that date, may not pursue a course of study at an approved school until the immigration service has first approved his or her application for change of status to a classification as an F-1 student. The government will deny the change of status if the B-1 or B-2 nonimmigrant enrolled in a course of study before filing the application for change of status or while the application is pending.

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RECENT CHANGES IMPACTING STUDENT VISA HOLDERS SEVIS has changed greatly the rules under which schools operate. It creates a new set of rules for schools that requires the reporting of numerous “events” within a specified time period. Those events include registration; dropping below a full time course load; changes in academic information, personal information (including change of address) and financial information; withdrawal, termination, transfer to a new U.S. school, changes in program completion date, and adding dependents, among others. Schools throughout the United States have had to fundamentally change their internal business practices to develop systems that provide for the reporting of such data in SEVIS in a timely manner. Some schools monitor their institutional databases for changes on a daily basis, others according to a specific schedule. For students, there are now real and scary consequences for violating any of the SEVIS regulations, no matter how minor or technical. How Does SEVIS Work for Spouses and Children of Principal F Visa Holders? Just like students, any F-2 dependents must have a record created for them in SEVIS. Each dependent is assigned his or her own SEVIS ID number, and individual I-20s or clearly marked “Dependent” are issued for all dependents. To obtain an F-2 visa, each dependent, no matter how young, is given his or her own document. Maintaining Valid Student Status:

□ keep your passport valid at all times □ within ten days of moving, report change of address to DSO for entry into SEVIS □ attend the school you are authorized to attend, as indicated on the I-20 □ pursue a full course of study □ maintain registration each semester until graduation or transfer to a new school □ obtain prior authorization from the DSO before dropping below a full course of study □ follow required procedures for moving from one educational level to another, transferring

from one school to another, and filing a timely application for program extension □ limit on campus employment to no more than 20 hrs per week when classes are in session □ refrain from off campus employment without authorization The most common reasons why students fall out of status are: (1) dropping below a full-time

course load without permission, and (2) working without authorization. Dropping Below Full Course Load: The DHS defines in a fairly narrow way those reasons that can be approved for dropping

below a full-time course of study. They are: 25

□ a documented medical condition □ academic difficulty (defined as unfamiliarity with U.S. teaching methods, inappropriate

course placement, or initial difficulty with English language or reading requirements) □ completion of study in the current semester

Problems occur when a student decides to drop a course that brings the registration to less than full time without getting permission from the DSO first.

Working Without Authorization: Work without authorization can include internships for which a student fails to obtain authorization

before beginning employment. Question: If a student gets paid $100 for participating in a one-time psychology experiment on

campus, is that unauthorized employment? Is the student out of status? What if the student receives a 1099-MISC? Will that trigger the attention of CIS?

Answer: If we define employment as compensation in exchange for a service, then the payment for

the one-time psychology experiment is employment. But if the student is paid from a university account, that is on campus employment and therefore okay. F-1s do not require prior permission for on-campus employment.

Can F-2s get work permission? F-2s can’t work. To work the F-2 would need to qualify for a different visa. If a Student Does Fall Out Of Status, Is There a Way He Can Get Back into Status? Yes. There is a procedure known as reinstatement. A student who has violated status sometimes may

apply for reinstatement to student status if a bona fide desire to complete his or her studies is demonstrated. Judicial and administrative attitudes in regard to such violations have varied. The review is made by the student-schools officer at the USCIS district office having jurisdiction over the student’s place of residence.

The regulations require that the student:

· files a request for reinstatement on Form I-539 accompanied by a properly completed SEVIS Form I-20A-B (for academic students) and the appropriate fee;

· has not been out of status for more than five months at the time of filing the request for

reinstatement, or if the student can demonstrate that failure to file within five months was the result of exceptional circumstances;

· does not have a record of repeated or willful violations of immigration regulations;

· is currently pursuing or intends to pursue a full course of study at the approved school;

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· has not been employed without authorization;

· is not deportable on any other ground; and

· establishes that the violation resulted from circumstances beyond his or her control, or

that he or she would suffer extreme hardship if not reinstated. The (legacy) INS occasionally used to allow an F-1 student to be reinstated upon reentry to the

United States. In 1996, however, the INS made it clear that that procedure was no longer valid. Reinstatement is a formally adjudicated procedure, made only through an application on Form I-539 to the DHS.

In cases where a reinstatement application is not practical, and the student is willing to travel abroad

and make a new entry into the United States, the school can issue a new SEVIS I-20 endorsed for “initial entry.” However, the student will need to get a new F-1 visa since any prior F-1 visa would have a different SEVIS number on it.

What If the Student Becomes Ill? Depending upon the nature of the illness, the student may decide to return to his or her home

country, or seek treatment in the United States. Also depending upon the illness, the student may be able to continue their studies, or continue with a reduced course load, or may need to withdraw from school entirely. In such a situation, we need to be mindful of two parallel sets of rules: (1) the institutional rules that a university may have to handle such matters, and (2) the federal regulatory requirements for students.

A student with a documented medical condition can obtain approval for a reduced course load or a

complete withdrawal from the DSO. Such approval will be granted for one term only, and must be reported in SEVIS. If needed for more than one term, the student will have to submit a new request. No more than twelve months in the aggregate can be approved for such a reduced course load or withdrawal per level of study.

What If the Student Has Problems Keeping Up in His or Her Classes? Can She Drop Some? F-1 regulations allow students to apply to the DSO for a reduction in course load due to academic

difficulty. However, academic difficulty is narrowly defined. It is limited to three categories: initial difficulty with English language or reading requirements, unfamiliarity with U.S. teaching methods, or inappropriate course placement. If the course reduction is approved, the DSO must report it in SEVIS. The student must be registered for at least six credits, and resume a full course of study in the next available semester.

A student previously authorized to drop below a full course of study due to academic difficulties will

not be eligible for a second authorization due to academic difficulties while pursuing a course of study at that program level.

What If the Student Is in His or Her Final Semester Before Graduation and Doesn’t Need To

Take a Full Course Load to Graduate? Can He Take a Less Than Full Load Then?

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Yes. F-1 regulations allow a student in his or her final semester to take less than a full-time course load if a full-time course load is not required for graduation. This too must be approved in advance by the DSO and entered into SEVIS. The downside is that if the student obtains permission to take less than a full-time course load based on course completion, but then fails to graduate and has to remain for an additional semester, the student is then out-of-status for failure to be enrolled in a full course of study.

Students Traveling If an international student will be traveling inside the U.S., we recommend that the student carry his

or her passport, I-20 and record of admission (I-94) or electronically obtained information - see Appendix USCIS document on I-94 Automation ) to prove that the student is in legal status if he or she is stopped and questioned for any reason.

International students traveling outside the U.S. should have the following:

- A valid passport - A valid U.S. F-1 visa stamp in their passport (unless the student plans to apply for a new

visa)** - An I-94 card or automated admission information - An original SEVIS I-20 (with a DSO endorsement that is less than one year old) - Proof of financial support that matches what is indicated on the I-20 (i.e. a bank statement) - Transcript showing full-time enrollment (if applying for a new visa) - If their academic major might require the visa application to undergo a security clearance,

travel with a letter from the student’s department describing his or her program of study in detail

** If a student visits Canada, Mexico or adjacent islands for fewer than 30 days, his expired U.S. visa is automatically revalidated when he re-enters the U.S. Automatic revalidation of an expired U.S. visa also occurs when traveling to certain countries in the Caribbean. Automatic revalidation does not apply to citizens of certain countries, including certain Canadian landed immigrants and citizens of Iran, Iraq, Libya, Syria and Sudan. If the student has applied for post-completion F-1 optional practical training, he should not leave the U.S. before receiving his employment authorization document (EAD). If he leaves the U.S. before getting an EAD, he may be considered to be abandoning his application. When on OPT, it may be difficult to get a new U.S. visa because they have to prove that they are returning to the U.S. to resume employment, but at the same time, that they still have non-immigrant intent. VISA OPTIONS FOR STUDENTS POST-GRADUATION Practical training is an off-campus work authorization that permits an F-1 student to engage in employment related to his or her field of study. There are two types of practical training: curricular practical training and optional practical training. Curricular practical training is a

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training program integral to an established curriculum whereby the student alternates between the approved training and class room instruction. It takes place during a student’s enrollment. Optional practical training may take place either before or after completion of studies. These are known as pre-completion and post-completion optional practical training, respectively. To qualify for either curricular practical training or optional practical training, a student must satisfy two general qualifications:

· lawful enrollment on a full-time basis in an immigration -approved college, university, conservatory, or seminary for at least one continuous academic year. An academic year is defined as approximately nine consecutive months, depending on the particular school’s calendar. This also includes study abroad, if the student spent at least one full academic term enrolled in a full course of study in the United States before study abroad. Students in English language training programs are ineligible for practical training.

· request for authorization for practical training in a position that is directly related to the

student’s major field of study. Curricular practical training requires that there be an actual job offer, and how the training is integral to the student’s academic program must be documented. Optional practical training does not require a job offer, but must be applied for before the completion date of a student’s academic program. Curricular practical training can be authorized by the DSO. Optional practical training is only recommended by the DSO. Once the DSO has given the recommendation, the student must then file an employment application using form I-765 and the appropriate fee with the USCIS Service Center that has jurisdiction over the student’s residence. Optional practical training cannot be longer than 12 months. STEM graduates get a special deal. STEM stands for Science, Technology, Engineering and Math. STEM graduates qualify for up to 29 months OPT employment. Note that for a STEM graduate to qualify for the extra 17 months OPT, the student’s employer must be participating in USCIS’s E-Verify employment verification program. Students become eligible for a new 12-month period of optional practical training with each change to a higher educational level. Resources for Student Visa Issues Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, Immigration Law and Procedure chapters 18 and 22 (available through Lexis) NAFSA Adviser’s Manual of Federal Regulations Affecting Foreign Students and Scholars (available through NAFSA: Association of International Educators) Web sites: uscis.gov U.S. Citizenship and Immigration Services travel.state.gov U.S. State Department Bureau of Consular Affairs nafsa.org NAFSA: Association of International Educators

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J Visas101

Leslie K. L. Thiele, Esq.

February 12, 2014

Categories

INTENDED AS A ‘CULTURAL EXCHANGE’ OPPORTUNITY

• Administration through US Dept. of State

• Emphasis on cross-cultural learning as part of learning/training experience

MANY CATEGORIES OF J-1 VISAS (www.travel.state.gov)

• Professor / Research Scholar (5 years)

• Teachers: primary & secondary (3 years)

• Physician: graduate medical education

• Specialist (12 months)

• Short-Term Scholar (6 months)

• Trainee (18 months) / Intern (12 months)

• Students: secondary, university

• Au pair / EduCare (1-2 years)

• Camp Counselors / Summer Work Travel (4 months)

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Sponsors

EVERY PROGRAM INVOLVES A J-1 SPONSOR

• Employer may be authorized by DOS to sponsor J-1 visas themselves (universities, hotel chains, medical centers)

• Employer may work through approved sponsoring agencies which connect sponsors and workers (J-1 Trainees, Au Pairs, Summer Work Travel, etc.)

• Physicians: Educational Commission on Foreign Medical Graduates (ECFMG)

• Students: authorized through school or university

• Camp counselors: YMCA, local camp, or sponsoring agencies

DEPT. OF STATE WEBSITE : www.travel.state.gov

• www.usvisas.state.gov; click on “J” visa

• Extensive information on J’s, programs, application procedures

• Sponsor lists particularly useful for trainees, interns & camps

Two-Year Foreign Residency Requirement

J PARTICIPANTS MAY BE REQUIRED TO RETURN TO THEIR HOME COUNTRY FOR TWO YEARS

• Two-year home residency requirement applies if

- Government-funded exchange program: the program was financed in whole or in part, directly or indirectly, by the US government or the government of the participant’s nationality or last residence

Examples: Fulbright, DAAD

- Skills List: Country of citizenship or last residence has deemed the field of study to be necessary to the development of the country – regardless of

who paid for the program.

Current List: Exchange Visitor Skills List 2009

- Graduate medical education or training: residency, fellowship, etc.

• Participant must reside in their home country or in the country where they last resided prior to coming to the US

• No cheating: time spent “visiting” in the U.S. or another country doesn’t count

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And If They Don’t…

LONG-TERM VISA CONSEQUENCES TO HOME RESIDENCY REQUIREMENT

• No H or L nonimmigrant visa; no “green card” until two-year requirement performed or waived

• Other visas available (F, TN, O, P etc.) but limited

• Requirement merely postponed, not eliminated

- USCIS error may result in H or L visa, but may come back later, i.e.,

may block naturalization

- NOT eliminated by marriage to a US citizen

Waiver of the Requirement?

WAIVER OF HOME RESIDENCY REQUIREMENT MAY BE POSSIBLE

• Participant applies to DOS for a waiver based on

- “No objection’ statement of their home government

- Fear of persecution if they return home

- Extreme hardship, or

- The request of US interested government agency (IGA)

• Medical graduates have additional alternatives:

- Service in medically-underserved areas (IGA or VA)

- State “Conrad 30” program for service in state medically-underserved areas

• Waiver application is adjudicated by USCIS and by US Dept. of State

- May be denied for national interest reasons even with a USCIS

recommendation of a waiver

- Fulbright & other major government scholarships

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Useful Websites

U.S. Dept. of State www.travel.state.gov

Background on US visas usvisas.state.gov

J-1 visa information . www.j1visa.state.gov(Programs, sponsors, etc.)

Immigration & Customs Enforcement www.ice.gov

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