INS Proposes Significant Changes to Rules Governing Visitors and Students

In light of September 11^th, the Immigration and Naturalization Service (INS) proposed several changes to the rules governing visitor admissions.

Prohibition On Attending School Prior to Approval

The new interim rule was effective on immediately upon publication, but stills allow for public comment. The rule prohibits non-immigrant visitors admitted under B-1 or B-2 visas from pursuing a course of study at a school in the United States prior to receiving INS approval of their request to change non-immigrant status to that of an F (academic) or M (vocational) student. To facilitate this process, INS has set a target processing time of 30 days for all requests to change or extend non-immigrant status, with all four Service Centers achieving that target within the next 60 days.

Minimum Admission Period Eliminated

The proposed rule will eliminate the current minimum six months admission period for B-2 visitors for pleasure, replacing it with " a period of time that is fair and reasonable for the completion of the purpose of the visit."   When B visa holders apply for entry to the United States, they will be required to explain to an INS Immigration Inspector the nature and purpose of their visit so the Inspector can determine the appropriate length of stay.  While INS Inspectors will make every effort to determine a fair and reasonable time period, the burden of proof rests with the alien.  When the time needed to accomplish the purpose of the visit cannot be determined, INS will grant a 30-day period of admission. It will be very important for visitors to carry the necessary documentation with them to provide to INS Inspectors at the point of entry into the U.S.

The proposed rule will limit the conditions under which a B visitor can obtain an extension of stay, and will reduce the maximum extension period that can be granted.  Persons in B status will be eligible to extend their stay in cases that have resulted from " unexpected or compelling humanitarian reasons, " such as medical treatment or a delay in the conclusion of a business matter.  The request using Form I-539 (Application to Extend/Change Nonimmigrant Status) must be properly filed on a timely basis and be non-frivolous. The alien must also prove that there are adequate financial resources to continue their stay in the United States and that he or she is maintaining a residency abroad.  The rule also reduces the maximum extension that can be granted from one year to six months.

Individuals planning to attend school in the United States are expected to obtain the proper student visa prior to their admission to the United States.  However, INS stated that it recognizes that some intending students will want to visit the United States first for bona fide visitor purposes, such as touring campuses or interviewing for admission.  The proposed rule will establish new requirements for B non-immigrant visitor visa holders who wish to become students.  Persons admitted under B non-immigrant visitor status will still be able to change their status to that of a student, but only if they stated their intent to study in the United States when they initially applied for admission and presented any I-20 forms that may have been issued to them.  Inspectors will be required to note " Prospective Student" on the alien’s I-94 form Arrival/Departure Record).

This rule will impact only those students admitted in B status after the rule’s effective date. Existing rules allowing the commencement of studies before a change of status is approved will continue to apply to those already in the United States in B non-immigrant visitor status, since they may have already started a course of study in reliance upon existing rules.

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