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The Delamere-International Newsletter ©

Special Edition of 12 April 2002 #108

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This week the INS (Immigration and Naturalization Service) published new regulations imposing significant restrictions on foreign visitors and students in the US. These regulations take immediate effect.

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Students who entered the US on a business or tourist visa will not be allowed to begin attending school until the INS has approved their change of status to F-1 or M-1. The change is, as the regulation notes, a direct result of the September 11th attacks and the issuance, last month, of approval notices to the flight schools where two of the hijackers attended school.

The rule became effective on the date it was published, April 12, 2002 but does not apply to people who entered the US in B status prior to that date. These people will be allowed to begin school upon filing the change of status application, and those who are already attending school will not be required to stop attending until the change of status is approved. The rule will, however, apply to anyone already in the US who files an application to extend his or her B status prior to filing for a student status.

The INS will accept comments on the rule for 60 days, but, for national security reasons, it is effective immediately. In addition to security concerns, the INS also wanted to avoid an influx of people coming to the U.S in B status in anticipation of the rule change.

The impact of this change will be substantial for a number of people who wish to study in the US. Many people find it difficult to obtain an I-20 from a US school without being present in the US. They therefore come to the US, informing the INS inspector of their intention, and after obtaining the I-20, apply for a change of status. People in this situation will now have to return to their home country and apply for a student visa there before being able to study in the US. There is also the concern that the INS will not be able to fulfill its promise to adjudicate all requests for a change to student status within 30 days, given the agency's poor record on processing applications.

The other rule, dealing with the period of admission of business and pleasure visitors, is even more significant. However, it is only a proposed rule, and the INS is sure to receive a number of comments on it.

Currently, people who enter the US on a B-1 or B-2 visa are routinely granted a six-month period of stay. In fact, B-2 visitors (for pleasure) are by regulation to be granted six months. This regulation would require that the person be admitted only "for a period of time that is fair and reasonable for the completion of the purpose of the visit." The regulation would also make six months the maximum period of admission, rather than the current one year.

Business visitors would be able to file applications for an extension of stay, but would be required to show that the need for the extension is based on unexpected events or compelling humanitarian reasons. Applications for extensions of stay would also be granted to a limited class of people, including members of religious denominations in the US solely to perform missionary work, people engaged in establishing a new office for purposes of an L visa, servants of people authorized to be in the US, employees of foreign airlines, and those who own homes in the US that they occupy on a seasonal or occasional basis.

The INS will require applications for an extension to be accompanied by much more detailed evidence regarding financial support and ties to the home country than is currently required.

The new rule will not apply to people admitted to the US before it goes into effect, but will apply to extension applications made by those people.

The rule also makes a significant change to those who enter in B status seeking to enroll in a US school, in addition to the changes discussed above. Currently, it is very difficult to switch from B to a student status, but it can be done. One thing that makes the process much easier is if, at the time of entry, the person tells the INS inspector of their plans to attend school. The new rule will make this a requirement and will call for the denial of any student status application in which the applicant does not submit an I-94 indicating that the B entrant is a prospective student.

(The Offices of Siskind, Susser, Haas & Devine, Attorneys at Law kindly provided the above news)

We shall provide a more detailed report in our forthcoming Monthly Newsletter of 30 April 2002.




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