Us Visas For Students And Family

THE HAYNES IMMIGRATION LAW FIRM 1555 CONNECTICUT AVENUE NW Suite 200 Washington DC 20036 (202) 293-3123 phone (202) 293-6230 fax

Keeping the Family Together: Visa Options for Foreign Students and Their Family Members IEAC Spring Conference April 29, 2009 Prepared by Amy R. Novick [email protected] www.dcimmigrationattorney.com

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Overview of Presentation • Agencies that Administer the Immigration Laws • Basic Terminology • Most Common Visa Options for Foreign Students and their Families • Basic Student Application Procedure • Consular Procedures, What to Expect, and Potential Problems • Student Visa Extensions, Expiration Dates, Transfer, and Effect on Visa • Consequences of “Bad” Behavior • Consulting / Hiring Immigration Counsel

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Agencies that Administer Immigration Laws THE PLAYERS: 3 main – DHS, DOS, DOL 1. DHS – Department of Homeland Security (Homeland Security Act of 2002) • established 3 separate agencies (formerly INS) a. U.S. Citizenship and Immigration Services (USCIS) Responsible for adjudicating immigration benefits -Determining eligibility for status b.

Customs and Border Protection (CBP) Responsible for inspection of people and goods at borders and ports of entry

c.

Immigration and Customs Enforcement (ICE) Responsible for interior enforcement -Investigates violations of immigration laws, enforces departures (deportation and removal)

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2. Department of State (DOS) Authority to issue visas and process visas Conducts security checks abroad Consular officials have nonreviewable discretion to deny visas, with limited exceptions 3. Department of Labor (DOL) Involved in those cases where US labor market is tested and workforce issue involved

Department of Justice Immigration Court directed by Attorney General Foreign nationals apprehended by CBP or ICE appear before immigration judge

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Basic Terminology

Visa vs. Admission Visa - must prove eligibility for visa; stamp in passport; I-94 – arrival departure record

Nonimmigrant vs. Immigrant Key distinction – temporary vs. permanent and matter of intent Immigration law sets out presumption that every foreign national applying for visa is an intending permanent resident. “Every alien shall be presumed to be an immigrant until he establishes to a consular officer and immigration officer at the time of application for admission that he is entitled to a nonimmigrant status”

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Green Card/ Green Card Holder Evidence of lawful permanent resident Often used interchangeably – erroneously – as work permit. Lawful Permanent Resident vs. Citizen LPR are here permanently but do not have the same rights as USC Can be deported or otherwise lose status Cannot vote or serve on a jury Not entitled same benefits or jobs as citizens Must apply for citizenship (5 yr/3yr wait) Unlawful Presence Overstayed visa and out of status 3 year bar – 180 days 10 year bar – 365 days Triggered only if you leave the U.S.

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Visa

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I-94

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Visa Application Must Prove Eligibility If USCIS approval is required, must have approval notice Consular Officer will request electronic notification Applicants Must Present Valid Passports & Supporting Documents Security & Name Checks Upon Issuance Of Visa, May Seek Admission To U.S. Exceptions – Most Canadians & Temporary Visitors

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From Certain Countries

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Grounds of Inadmissibility • Medical • Criminal and related grounds • Security and Related Grounds • Public charge • Labor Certification and other qualifications for immigrants • Illegal entrants and immigration violators • Documentation requirements for nonimmigrants and immigrants • Aliens previously removed • Aliens who are unlawfully present • Practicing Polygamists, child abductors and their supporters, unlawful voters, and former citizens who renounce to avoid taxes

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Most Common Nonimmigrant Visas Visitors B-1/B-2 – Visitor for business or for pleasure cannot work or obtain remuneration must depart at end of visit Business (B-1) Can engage in commercial transactions Negotiate contacts Consult with business associates Attend conferences Undertake independent research Pleasure (B-2) Tourism Medical treatments Participate in amateur athletics

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VWP – Visa Waiver Program Available to foreign nationals from countries of low rates of visa denials Individual need not formally apply for visa in advance but must obtain electronic authorization in advance of boarding - ESTA 90 days only cannot change status once in the U.S. other limitations

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Educational F-1 Foreign Students Students who engage in an academic full course of study M-1 – Vocational Students Similar to F-1 but for vocational institutions J-1– Exchange Visitors Exchange students coming through programs specifically approved by the State Department Camp counselor Internships Two year home residency requirement Waivers are available

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Other Visa Options for Families Work-related H – temporary workers and trainees H-1B – for temporary professionals Must have sponsoring employer Persons who will engage in a specialty occupation, defined expansively Position requires specialized knowledge Must have a bachelor’s degree or higher or its equivalent (experience for education is permissible) E’er must obtain certification from DOL in which e’er attests among other things, that the wage paid to alien is the prevailing wage or no less than wage paid to similarly qualified workers Spouse and dependents cannot work Six year limit with exceptions 65,000 annual quota – can file April 1 for positions starting October 1

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L – intracompany transferees: managers, executives, or those with specialized knowledge Must be transferred from company abroad to affiliate, subsidiary, or parent to U.S. entity Employed 1 year of last 3 years Spouse can work 5/7 year limit E-1/E-2 – Treaty Trader or Investor Must be national of country where reciprocal treaty of commerce or navigation between U.S. and country of nationality (about 80 countries) Does not need sponsoring employer Spouse can work Indefinite E-1 – Treaty Trader - trade must be substantial E-2 Treaty Investor - investment in new commercial enterprise must be substantial No set formula for determining “substantial”

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O – aliens of extraordinary ability in arts, science, education, business, athletics Must show sustained national or international acclaim Must have sponsoring employer Spouse /dependents cannot work Indefinite

R – religious workers TN – Under NAFTA -- Canadian or Mexican professionals Similar to H-1B but no limitations on length of stay

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Foreign Student Program

Creation of SEVIS – Student and Exchange Visitor Information System - tracks F & M vocational students F-1 – Foreign Students F-1 requirements: 1. Residence in a foreign country which he has no intention of abandoning 2. bona fide student pursuing an academic full course of study 3. seeks to enter temporarily and solely for the purpose of pursuing such a course of study at an established college, university, high school, elementary school, or other school designated and approved by the Attorney General.

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Admitted for duration of status (D/S) Monitored by DSO (designated school official) at an approved institution Eligible for optional practical training (OPT) for 12 months after completion of program 29 mo. OPT for students in STEM fields: science, technology, engineering and math.

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Basic Student Application Procedure Must get authorization from SEVIS approved school -9,609 institutions currently on list - New schools under ICE site visit, application and fee (I-17), designated school officials who sign immigration forms - approval granted for two years; schools must get recertified - strict rules govern schools and school officials who issue I-20s Over 1 million foreign students and their families in the U.S. USCIS / SEVIS approved school issues I-20 I-20 certifies admission into program and that student is eligible and that student made application to school DSO enters data into SEVIS, which is accessible to consular officials. Record follows the individual.

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Student applies for visa at consular post – Form DS-156 (and if applicable, DS157, DS-158)

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Consular Procedures, What to Expect, and Potential Problems Consular web sites – basic info on requirements, appointment wait, procedures Consulate issues F-1 visa -Verify SEVIS 1-20 in system - reviews visa application (DS-156) - background security check - notifies USCIS that visa has been issued; other I-20s invalidated

Common reasons for denial No SEVIS record Failure to pay SEVIS fee (I-901) Failure to establish eligibility - ties to home country - sources of financial support - application of U.S. education once they return

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Cannot issue visa more than 120 days in advance of program start date and student cannot enter more than 30 days in advance; does not apply to returning students.

Consulate can issue visitor’s visa if student is undecided Can issue B-2 visitor visa for short-term course of English language study. (less than 18 hours per week) Student can change status once in U.S. but takes 3 months under current processing times and can cause problems later; cannot enroll in school until change of status approved. - preconceived intent - 30/60 day rule - Need letter explaining why change of status

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Once in the U.S. CBP inspector takes SEVIS I-20, after 10 days returns it to school and school to student. Admitted for duration of stay (as indicated on I-20)

Student cannot attend public elementary school (K-grade) Cannot attend publicly funded adult education program Can attend public secondary school only if: a) period not in excess of 12 months; and b) demonstrates reimbursement of full unsubsidized per capita cost of education

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Can attend public community colleges or junior colleges (at nonresident tuition rates) If student violates this provision, barred entry for five years (no waivers) No “parachute” students

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Visa Extension, Expiration Dates, Transfer, and Effect on Visa

Extension – must be requested before current I-20 expires, must apply with DSO Full course of study – student can drop courses for academic or medical reasons – generally can drop once but must get approval in advance Transfer – must do so within 5 months of new start date if in US. Must advise DSO and establish transfer date Closure of school – student must transfer to another school or risk being subject of removal and accruing unlawful presence Reinstatement available if student engaged in status violations

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Consequences of Bad Behavior Using two different I-20s Violating or falling out of status - working, dropping courses Removal proceedings and determination by judge that status violation occurred Bars to readmission – 3/10year bars; 5 year bar as visa violator Not continuously maintaining status

Problems later – unable to adjust status - 245 (c)(2)

Fraud problems

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Consulting / Hiring Immigration Counsel AILA – American Immigration Lawyers Association -national association of immigration lawyers – 11,000 State Bars – if suspect incompetence Consultation process

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