By regulation, a B visitor violates his or her status by enrolling in a course of study.  However, the State Department guidelines allow use of B-2 classification for: 

• A short course of student incidental to the visit;
  
• Enrollment in an avocational or recreational school; and,
  
• Travel to the U.S. in advance of proper student status because of some difficulty in arranging F-1 or M-1 status prior to departure to the U.S.  
  
  

The Department of Homeland Security states that a ‘course of study’ implies a

“focused program of classes, such as a full-time course load leading to a degree, or in the case of a vocational student, some type of certification.  Casual, short-term classes that are not the primary purpose of the alien’s presence in the U.S., such a single English or crafts class, would not constitute a course of study.  Courses with more substance that teach a potential vocation, such as flight training, would be considered part of a course of student and thus would require approval of a student status.” 

Students at the consulate applying for a tourist visa should present evidence on the nature of the course of student and to request an annotation, “Study incidental to visit Form I-20, Certification of Eligibility NOT required.”

The Student Visas

The F and J student visas are tracked by the Student and Exchange Visitor information System (SEVIS) that links all US consulates, ports of entry, sponsoring institutions and exchange visitor programs.  SEVIS also tracks students and family members providing real time information about a student’s admission, visa issuance, entry into the U.S., registration for classes, changes of address, program of study, program extensions, and employment authorization.  SEVIS ensures that students do what they are supposed to do.   It is through SEVIS that a target school may produce an I-20. 

Proving Nonimmigrant Intent

Nonimmigrant intent will always be at issue as you change status from one nonimmigrant status to another.  Upon eligibility for and interest in adjusting status to legal permanent residency, nonimmigrant intent will no longer be at issue.

Failure to prove nonimmigrant intent is the most common reason for visa denial and most common with B and F visas.  Students are typically young with few or no tangible property or business ties to their country of origin, especially when they come from countries with less promising economies.  Seeking educational opportunity is closely related to seeing economic opportunity.  Students must therefore carefully documents their ties to their home countries to the greatest extent possible by showing whatever may be applicable such as:

• Nuclear and extended family present there and not in the U.S.;
• Career opportunities such as a prosperous family business, job offers, prior employment, or specific industry prospects;
• Membership in groups, particularly if the alien has invested substantial time and / or money;
• Ownership of property, including an actual residence;
• Interests and opportunities that may be forfeited if the alien fails to return home such as a bond placed with the home country’s government, employment that may expire at the end of an authorized leave of absence, etc.;
• Absence of, or explanation of existence of, family members in the U.S.;
• Career opportunities in field in U.S.  are less promising than in home country;
• History of alien’s and family’s timely return from the U.S. on prior trips;
• Adequate financial arrangements for the visit, including:

·         Prepurchased round trip ticket;

·         Funds to be brought by or able to be accessed by the alien;

·         Sponsoring employer’s obligation for expenses/ salary;

·         Affidavit of Support (Form I-134) executed by a U.S. citizen or permanent resident, preferably with family or long-standing meaningful ties with the alien, along with a letter explaining the connection with the alien and the temporary purposes of the visit;

·         Arrangements for support of family remaining abroad;

·         Arrangement for resumption of work upon return;

• Specific travel plans, including:

·         Prepaid airline tickets to, from, and within the U.S., hotel reservations, car rental reservations; and,

·         Detailed itinerary, letters of invitation and/or other documents confirming specific plans (i.e. confirming letters of business meetings, tour packages, seminar schedules, etc).   

Proving Adequate Financial Support

Generally, financial support should be demonstrated by:

• An affidavit of support with accompanying proof of supporter’s income and assets as well as a meaningfully close and/or long-standing relationship between the beneficiary and the supporter;
• Evidence of the foreign national’s own assets or income and or;
• Confirmation letter of the foreign national’s authorized employment.

A student must document his or her ability to pay for educational and living expenses while in the U.S at the level shown on Form I-120 to be needed for a particular school, incorporating scholarships and on-campus employment.  This is done through:

• An affidavit of support (Form I-134) from close family relatives with supporting documentation including employment letters, bank letters, and evidence of family assets; and,
• Evidence of student’s own assets;
• Evidence of a scholarship from the school or other sources, with specifics;
• Sometimes the last four statements of the checking, savings, and/ or other money account can work;  (bank letters are not effective.)

The supporting funds must be immediately available and not merely possessed.  Thus they cannot be caught up in an inaccessible trust fund or prohibited from removal by the home country’s government, at least for the first year, with future year’s support to become available as needed.  Employment income is immediately available income.

Change of Status to Student Status

Requests to change to student status are frequently denied, particularly for students who entered on visitor’s visas on visa fraud grounds (students appeared to have used the visitor’s visas to avoid the normal procedures for obtaining student visas from abroad).  Thus, to change to student status, the foreign national must provide a convincing and hopefully well-documented explanation of his or her original intention and subsequent good faith change of intent.

Sometimes aliens cannot enter in student status because the school ahs not been selected and thus must enter in B-2 visitor status instead with the intent to change to F-1 within the U.S.  The consul will in such situations write “Prospective Student—“ under the B-2 visa stamp, a copy of which should be submitted when requesting a change of status.

Reisntatement of Status

A student who fails to maintain status such as through course load reduction without prior DSO approval may seek reinstatement provided that he or she pays the fee, has not worked without authorization, and applies within 90 days of the violation of status.  The student may attend school pending a decision.  The student granted reinstatement is no longer deportable but will not be considered to have maintained valid status for such purposes of adjustment of status (which is not an issue if adjustment of status is based on an immediate relative petition).

Alternatively, the student may depart the U.S. and seek to reenter using either an unexpired or a new visa and a newly issued I-20.  If the student refrains from filing for reinstatement and instead just makes plans for reentry, he or she will not accrue what is called unlawful presence, which bars his or her reentry. This is tricky:  If the student is denied reinstatement prior to his or her departure, then:

• Any otherwise valid F-1 visa automatically becomes invalid
• Reentry in F-1 status may only be with a new F-1 visa obtaining in his country of nationality, AND
• If he remains 180 days beyond such notice of violation he becomes barred from entry upon his next departure for any reason. 

School Transfers

An F-1 student may change schools without much trouble.  The former I-20 must remain valid and the old school must be notified of the transfer.  The student must resume classes within 5 months of the earlier of:  transferring out of the old school; the completion date on the current I-20; or, the expiration of the work card if in optional practical training.  Contact my office for greater details as needed.  New work authorization is required for an F-1 school transfer.

Employment

During the first full academic year (9 months of Fall through Spring), only on-campus employment can begin and it can began immediately upon admittance into F-1 status. Off campus employment is available under severe economic hardship or through an internship with an international organization after the first year.  The use of economic hardship allows full time work and a reduction of course load.  Other F-1 categories include practical training, curricular practical training, optional practical training, an internship with an international organization, and special arrangements for groups in emergent circumstances.  Students need to carefully plan their employment with an immigration attorney to best preserve optional practical training after graduation. 

Travel outside the United States is permitted during breaks but a leave of absence will generally result in loss of the F-1 status.