New light on how to interpret Immigrant Intent for Student Visa Applicants

In a recent cable, the Department of State (DOS) advises consular officers on how to interpret the immigrant intent requirement when adjudicating student visa applications. Consular officers are advised to evaluate the requirement to maintain a residence abroad in the context of the student’s present circumstances, and to focus on the student’s immediate and near-term intent.

Specifically, officers are reminded that the concept of “ties” to one’s home country is less useful in assessing the present intent of a student than it is for applicants for other types of nonimmigrant visas. Reasons for this include the typical student’s youth, lack of employment, lack of family dependents, and lack of substantial personal assets.

Moreover, students typically stay in the United States longer than other nonimmigrant visitors and may have only general rather than specific plans for the future. Because they may not yet have formulated specific long-range plans, students are also less likely to have formed an intent to abandon their homes. Accordingly, while consular officers must be satisfied at the time of application that the visa applicant possesses the present intent to depart the United States at the conclusion of his or her studies, the fact that this intention is subject to change or is even likely to change is not a sufficient reason to deny a visa.

In the past, some students have been subject to special scrutiny at certain U.S. consular posts based on the fact that they intend to study a subject for which there is little or no employment in their country of residence. The DOS has now advised consular officers that this should not be deemed a negative factor in adjudicating a student visa application, nor should the fact that the student’s home country may provide equivalent courses in the same subject matter. Similarly, all legitimate schools must be accorded the same weight under the law, including four-year institutions, community colleges and English language schools.

In addition, students who travel back to their home countries during the course of their studies have sometimes experienced difficulties in obtaining new student visas if their initial visas have expired. Consular officers are now specifically advised that visas for returning students should generally be reissued in the normal course of business unless circumstances have changed significantly from the time of previous issuance. Posts are reminded that if students feel that a visa will not be issued to them so that they can continue their studies, they may be less inclined to travel home frequently to maintain ties to their country of origin. This could have the paradoxical effect of causing students to distance themselves culturally from their homelands.

While it is too early to assess the practical impact of the DOS’s new policy, we will monitor the situation and send out additional updates once there is some indication of whether the DOS cable has made a measurable difference for individuals seeking student visas to the United States.