Student nonimmigrant intent to be scrutinized

In an update to the State Department’s foreign affairs manual, applicants for student visas may be subject to greater scrutiny of their intent to depart the U.S. after their studies or Optional Practical Training.

Under the new guidance, officers must refuse a visa if they are not satisfied that the student’s present intent is to depart after completion of studies or OPT. While this provision does not impose new criteria, the updated guidance removes previous language that allowed officers to take into consideration the likelihood that students, who are typically young and single, may have less-established ties to their home country and tend to stay longer in the U.S. than other nonimmigrants.

Key points:

Applicants for student visas must demonstrate an intent to depart the U.S. upon termination of their student status and evidence of a residence abroad that they have no intention of abandoning.

The guidance directs officers to “assess the applicant’s current plans following completion of his or her study or OPT.”

The guidance also notes that the “hypothetical possibility” that the applicant may change or adjust status in the future is not a basis for refusing a visa.

Background: The foreign affairs manual provides guidance to consular officers in adjudicating visa applications. The manual has been updated to comply with President Donald Trump’s “Buy American, Hire American” executive order aimed at tightening rules for visa applicants.

BAL Analysis: Employers sponsoring F-1/OPT students should anticipate additional scrutiny regarding proof of the students’ ties to their home country and questions about their long-term plans following completion of their studies. The change to the foreign affairs manual is part of the State Department’s efforts to comply with a March 6, 2017 Presidential Memorandum that directed the State Department, Labor Department and Department of Homeland Security to rigorously enforce all existing grounds of inadmissibility, and to issue new guidance in compliance with that directive. Further agency restrictions are likely to follow, and all employees on nonimmigrant status should be aware that they are likely to face increased immigration scrutiny.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.

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