Renewing F-1 Student Visa While Waiting for EB-5 Visa: Understanding Present Intent v. Future Intent

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With the EB-5 visa backlog for Chinese-mainland investors now up to 3 years and likely to reach 4 years next year, some students are facing issues qualifying for an F-1 student visa when applying at a U.S. consular post. Although the Chinese student visa reciprocity schedule thankfully now allows for issuance of a 5-year student visa, students must still show eligibility to the U.S. Customs and Border Protection (“CBP”) officers at the time of applying for admission to the U.S. The same is true for Vietnamese students whose F-1 visas are only valid for 12 months and who return home to apply for new F-1 visas to continue their studies. During the F-1 visa interview, a consular officer may conclude that the student is ineligible for the nonimmigrant student visa due to the existence of a pending or approved Form I-526 petition (an immigrant visa application) by the student, or his/her parent. Careful planning and guidance is essential to comply with the law, and to ensure student visa applicants can meet their educational goals.

The Immigration and Nationality Act (“INA”) has a presumption of “immigrant intent” that must be overcome when applying for a student or visitor visa, and a student or visitor is ineligible for admission until he/she “establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status.” If the student visa applicant fails to demonstrate a “present intent to leave the United States at conclusion of approved activities,” he/she “must be refused a visa under INA 214(b)”. The same issue could be raised by CBP for those who already have student visas in their passports.

Attempting to enter the U.S. on a nonimmigrant visa with a pending or approved immigrant visa application raises the issue of “present intent” versus “future intent”. The U.S. Department of State’s Foreign Affairs Manual (“FAM”) instructs consular officers to “focus on the student applicant’s immediate intent, rather than trying to predict what the student may or may not do following completion of studies.” The FAM clarifies:

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 is not a sufficient reason to refuse a visa. Although students may apply to change or adjust status in the United States in the future, this is not a basis to refuse a visa application if the student’s present intent is to depart at the conclusion of his or her studies.

Accordingly, it is important to be honest and forthright when applying for an F-1 visa, and the student must be clear they have a present (at the time of the interview) intent to depart, if accurate. Students should be aware of the legal criteria to obtain an F-1 visa prior to the visa interview to rebut the presumption of immigrant intent.

The State Department provides generous guidelines to “returning” students who must apply for visa renewals if they go home or travel during their period of study. Consular officers are instructed to, “generally issue visas to returning students who are qualified, unless circumstances have changed significantly from the time of previous issuance.” Students are encouraged to travel home during their studies in order to maintain ties to their country of origin. The regulations explain that, “If students feel that they will encounter difficulties in seeking a new student visa or that they will not be issued a visa to continue their studies, they may be less inclined to leave the United States during their studies and hence may distance themselves from their family and homeland.” Consular officers are therefore advised to, “facilitate the reissuance of student visas so that these students can travel freely back and forth between their homeland and the United States and thereby maintain their ties.”

Immigration law can be highly complicated and it is important to understand the complexities of immigration law or applicants acting in good faith may still see their studies disrupted through poor planning. If a visa is refused, it may be possible to apply for reconsideration, accompanied by a brief and supporting documents with any new evidence showing the student’s eligibility for an F-1 visa. The use of an experienced immigration attorney may be helpful.

This post originally appeared on Wolfsdorf Immigration Law Group. Copyright © 2017 Wolfsdorf Connect - All Rights Reserved.


About The Author

Bernard Wolfsdorf Bernard Wolfsdorf is the managing partner of the top-rated law firm, Wolfsdorf Rosenthal LLP (www.wolfsdorf.com), and the past national president of the 14,000-member American Immigration Lawyers Association (AILA). Established in 1986, Wolfsdorf Rosenthal LLP is known worldwide for providing exceptional quality legal services. With 19 lawyers and offices in Los Angles and New York, the firm was recently listed as a top-tier immigration practice by Chambers & Partners with several of the firm's attorneys listed in the 2015 International Who's Who Legal. Mr. Wolfsdorf specializes in EB-5 investment immigration in addition to the full range of global immigration matters. Joseph Barnett is an Associate Attorney at Wolfsdorf Rosenthal LLP and a member of the firm’s EB-5 and business immigration practices. He is licensed as an attorney in Illinois and Wisconsin and practices exclusively in immigration and nationality law.


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