Articles Posted in Student Visa

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dogThe process of applying for a visa to come to the United States is lengthy and complex, even at its best. Two bills currently pending in the U.S. Congress would modify various aspects of the visa application process, and they could possibly complicate the process even further for some prospective immigrants. H.R. 5203, the Visa Integrity and Security Act (VISA) of 2016, would affect how petitions are submitted, the extent of Department of Homeland Security (DHS) background checks, and the burden of proof to establish visa eligibility. H.R. 5253, the Strong Visa Integrity Secures America Act (SVISAA), would modify procedures for vetting visa applicants and for sharing information within DHS and between DHS and the Department of State (DOS).

U.S. immigration law provides for two broad categories of visas. An immigrant visa allows a person to come to the U.S. with the intention of remaining permanently, usually after qualifying through a family member or an employer. Someone who comes to the U.S. on an immigrant visa often applies to adjust their status to lawful permanent residence, also known as a “green card.” Once they have been in the U.S. long enough, they might be able to become a naturalized U.S. citizen. By contrast, a nonimmigrant visa allows a person to come to the U.S. temporarily for a specific purpose. A B-1 tourist visa, for example, allows a person to visit the U.S. but not to work, while an H-1B visa allows a person to hold a job in the U.S. while the visa remains valid. Nonimmigrant visa holders who remain in the U.S. after their visa expires are said to be “overstaying” their visa.

A person petitioning for a visa typically files the petition with U.S. Citizenship and Immigration Services (USCIS), which is part of DHS. A prospective immigrant located outside the U.S., however, has to go through a U.S. consulate in the country where they are located. The U.S. consulates are part of DOS.

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By tanakawho from Tokyo, Japan (urban fragments in a raindrop) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia CommonsStudents who are present in the U.S. on an F-1 visa have limited work authorization, which includes jobs on campus and jobs within their field of study. In some cases, F-1 students may remain in the U.S. for a job after they have completed their studies. This program, known as “optional practical training” (OPT), has been the subject of litigation, based on allegations that the Department of Homeland Security (DHS) did not follow proper rulemaking procedures when it amended the OPT rules in 2008 to allow extensions for certain people with OPT jobs. A federal judge in Washington DC vacated the amended rule in August 2015 but stayed the order for six months. In January 2016, one month before the stay was set to expire, the judge granted DHS’ request for a three-month extension to allow DHS to complete the process of amending the OPT rules again.

An F-1 student is permitted to work on campus for up to 20 hours per week while school is in session, or full-time during breaks. 8 C.F.R. § 214.2(f)(9)(i). Off-campus work authorization is possible if an F-1 student can show “severe economic hardship” and a lack of on-campus opportunities. Id. at § 214.2(f)(9)(ii). DHS may also authorize an F-1 student, once they have completed one academic year, to work off campus for “practical training” purposes for up to 12 months. The period of training may be extended for an additional 12 months when the student advances to a higher level of education.

Internships and other types of work that are part of a specific curriculum are known as “curricular practical training” (CPT). 8 C.F.R. § 214.2(f)(10)(i). Other work that is “directly related to the student’s major area of study” may qualify as OPT. Id. at § 214.2(f)(10)(ii). An F-1 student may be employed in an OPT job while enrolled in school, and for up to 14 months after completing their studies.

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OpenClipartVectors [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayEvery year, hundreds of thousands of international students attend American colleges, universities, and other schools with temporary student visas. According to the Institute of International Education, more than 886,000 international students were enrolled in the U.S. during the 2013-14 academic year. About half that number, 450,000 international students, studied in the U.S. during the 1993-94 school year. As the number of international students applying to and enrolling in American schools continues to climb, however, the student visa system is not keeping up with the demand or the realities of life for these students. It is a critical and under-appreciated area of need in the immigration system.

Types of Student Visas

Several types of nonimmigrant visas are available for people traveling to the U.S. for study. The visa holder typically must return to their home country when their visa expires, which usually occurs soon after they graduate or their program ends.

– The F-1 visa is available to full-time students at American colleges and universities. Spouses and children may accompany them with F-2 visas. “Border commuters,” who live in Canada or Mexico but attend school in the U.S., may enter the country with an F-3 visa. 8 U.S.C. §§ 1101(a)(15)(F), 1184(l); 8 C.F.R. § 214.2(f).

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By Christine Zenino from Chicago, US (Best View of Portofino  Uploaded by russavia) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia CommonsWhen a person petitions for a nonimmigrant visa outside the U.S., the Department of State (DOS) usually has authority over the petition, and the consular official who reviews the petition has a substantial amount of discretion. The media reported several months ago on a Chilean couple who had been living in New York City for several years, but who were denied re-entry after they left the country with their children to go on vacation. The apparent reason for the denial was a lawsuit brought by a former employee under a federal human trafficking statute. While a judge dismissed the case, the consular officer reportedly concluded that the couple was nevertheless inadmissible.

The couple, described in the media as “Chilean aristocrats,” moved to New York City in 2011 with their two children. The wife later gave birth to their third child in New York. They came to the U.S. so that the wife could study graphic design. They brought the children’s nanny with them from Chile, but the nanny’s employment only lasted for about two months after their arrival. Two years later, the nanny sued the couple, claiming that they had “enslaved” her by bringing her to the U.S. on false pretenses, taking her passport, restricting her to a locked room, withholding food and medicine, and allowing the children to physically assault her. Garnica v. Edwards, et al, No. 1:13-cv-03943, complaint (S.D.N.Y., Jun. 10, 2013). The lawsuit included a civil claim for human trafficking under the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, 18 U.S.C. § 1595.

The couple and their three children traveled to Italy for a vacation in August 2014. They intended to stay for three weeks and return on September 6, but the DOS denied the wife’s student visa renewal. The U.S. Consulate reportedly told her that she had failed to report involvement in human trafficking on her visa renewal application, and that it had denied the application because she had not been truthful. Their only conspicuous connection to human trafficking, however, was the nanny’s lawsuit, which was still pending in September 2014.

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320px-New-york-bay.jpgWe may soon reach the cap on J-1 visas in the Summer Work Travel (SWT) program, which allow visitors participating in “cultural exchange” programs to come to the United States for a defined period of time. Once the cap is reached, no more visas will be available until January 2013. The U.S. Department of State (DOS) has recently modified several procedures related to J-1 visas, effectively limiting the total available number. While the J-1 visa SWT program has provided excellent work and educational experiences for many visitors, it has also been the subject of controversy in recent years, with allegations of mistreatment and abuse of visitors by their employers.

The purpose of the J-1 Exchange Visitor Program, according to DOS, is to foster “global understanding through educational and cultural exchanges.” Applicants for a J-1 visa in the SWT program must have an offer of employment through a sponsoring organization approved by DOS. They must also meet requirements for English proficiency, proof of medical insurance, and to complete orientation and ongoing monitoring with the sponsor.

As a condition of the visa, visitors must return home when the program ends so that, in the words of DOS, they may “share their exchange experiences.” Visitors typically have a thirty-day “grace period” after the completion of their program to depart the country. At this point, once they leave the country, they must obtain another visa in order to return. Most participants in the program must remain in their home country for at least two years before they can return to the U.S.
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Apamea 14 - PorticoSyria has been embroiled in a bitter conflict between government forces and civilians for over a year. Protests for government reforms encountered a massive crackdown by the Syrian military, and the conflict has spread throughout the country since then. The American Red Cross reports that hundreds of thousands of people have either fled their homes or become trapped in their homes, and that about 9,000 people, including 600 children, have lost their lives.

The international community has imposed economic sanctions on the Syrian government, which has compounded the hardship faced by most Syrians. For Syrians currently in the United States, the conflict not only means that they cannot safely return home, but that they may not receive financial assistance from their families or, in the case of students, the Syrian government. Both major federal immigration agencies, U.S. Citizenship and Immigration Services (USCIS) and the Bureau of Immigration and Customs Enforcement (ICE), have offered temporary benefits to help people from Syria.

USCIS announced on March 29, 2012 that it will grant Temporary Protected Status (TPS) to eligible Syrians present in the United States. The Secretary of Homeland Security may designate a country as eligible for TPS based on armed conflict, a natural disaster, an epidemic, or some other “extraordinary and temporary condition” that would prevent nationals of that country from safely returning there. People granted TPS cannot be removed based on their prior immigration status. They may also obtain work authorization while TPS is in effect. A TPS designation does not give a person any additional grounds to apply for a nonimmigrant visa or adjustment of status once TPS expires.

The designation of Syria as eligible for TPS will stay in effect until September 30, 2013, although the Secretary of Homeland Security could decide to extend it beyond that time. A Syrian national applying for TPS must show continuous presence in the United States since March 29, 2012. USCIS will accept TPS applications for a roughly six-month period extending through September 25, 2012.

ICE announced on April 3 that it will temporarily suspend employment restrictions on eligible Syrian students suffering economic hardship due to the conflict. This will enable them to obtain employment to support themselves and their dependents. Syrian students may obtain employment authorization if they were present in the United States on April 3 on an F-1 student visa, and if they are enrolled in an educational institution certified by ICE.
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