USDOS Publishes Revised Policy on Determining Nonimmigrant Intent for Student Visa Applicants

USDOS Publishes Revised Policy on Determining Nonimmigrant Intent for Student Visa Applicants

On December 20, 2021, the U.S. Department of State updated its Foreign Affairs Manual (FAM) providing guidance to visa officers on assessing “nonimmigrant intent” by student visa applicants (F-1 and M-1 visas). The policy acknowledges that student visa applicants may have have the same firm ties to home country as other visa applicants may have based on ability to establish a residence abroad (e.g., ownership of property, employment, etc.).

A link to the full, updated FAM section on Students and Exchange Visitors is available here.

The specific section referenced, as updated, is the following:

9 FAM 402.5-5(E)(1)  (U) Residence Abroad Required

(CT:VISA-1439; 12-20-2021) [Text in italics updated Dec. 20, 2021.]

a. (U) INA 101(a)(15)(F)(i) and INA 101(a)(15)(M)(i) require that an F-1 or M-1 applicant possess a residence in a foreign country he or she has no intention of abandoning.  You must be satisfied that the applicant intends to depart upon completion of the approved activity.  Consequently, you must be satisfied that the applicant, at the time of visa application:

(1)  (U) Has a residence abroad;

(2)  (U) Has no immediate intention of abandoning that residence; and

(3)  (U) Intends to depart from the United States upon completion of approved activities.

b. (U) The context of the residence abroad requirement for student visas inherently differs from the context for B visitor visas or other short-term visas.  The statute clearly presupposes that the natural circumstances and conditions of being a student do not disqualify that applicant from obtaining a student visa.  It is natural that the student does not possess ties of property, employment, and continuity of life typical of B visa applicants.  These ties are typically weakly held by student applicants, as the student is often single, unemployed, without property, and is at the stage in life of deciding and developing their plans for the future.  Student visa adjudication is made more complex by the fact that students typically are expected to stay in the United States longer than do many other nonimmigrant visitors, to complete their program of studies.  In these circumstances, it is important to keep in mind that the applicant’s intent is to be adjudicated based on present intent – not on contingencies of what might happen in the future, after a lengthy period of study in the United States.  Therefore, the residence abroad requirement for student applicants should be considered in the context of the usual limited ties that a student would have, and their immediate intent.

c.  (U) While students may not be able to demonstrate the same strong “ties,” present in other classes of applicants, their typical youth often conveys a countervailing major advantage in establishing their bona fides: they are not expected to, or do not necessarily have a long-range plan, and may legitimately not be able to fully explain their plans at the conclusion of their studies.  As most students are relatively young and many reside with parents or guardians, you can consider a student to be maintaining a residence abroad if he or she intends to return to reside with parents or guardians.  Nonetheless, you must be satisfied at the time of application for a visa that the visa applicant possesses the present intent to depart the United States at the conclusion of his or her approved activities.  That this intention is subject to change or even likely to change is not a sufficient reason to deny a visa.  Further, the present intent to depart, does not infer the need to return to the country from which they hold a passport.  It means only that they must intend to leave the United States upon completion of studies.