STANDARD OPERATING PROCEDURES: STUDENT AND
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMEMBASSY KABUL
AMEMBASSY DUSHANBE
UNCLAS STATE 074670
VISAS, FOR CONSULS, ALSO FOR PAO''S
E.O. 12958: N/A
TAGS: CVIS, KPAO
SUBJECT: STANDARD OPERATING PROCEDURES: STUDENT AND
EXCHANGE VISITOR VISA PROCESSING UPDATE
REF: A) STATE 58041 and previous, B) STATE 39275, C) STATE
40261, D) 02 STATE 068756
1. Summary: As discussed in refs B and C, this telegram
constitutes a standard operating procedure, in this case
for handling student and exchange visitor visa cases.
This cable provides guidance on issues related to the
various regulatory time periods impacting student and
exchange visitor visa processing. The cable provides
information regarding the DHS regulation limiting the
entry of F, M and J nonimmigrants to thirty days or less
prior to their start/report date. Para 5 provides
language to be used to inform F, M and J visa recipients
of this DHS regulation. Para 9 directs posts not
already doing so to accept F, M and J visa applications
more than 90 days prior to the applicants'' start/report
dates. Septel will provide guidance on the impact of
SAO clearance lifespans. End Summary.
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30 Days, 60 Days, 90 Days
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2. Many posts have inquired of the Department about the
impact of the recently promulgated DHS rule limiting the
entry of students and exchange visitors to thirty days
or less prior to the beginning of their program or start
date as given on the Form I-20 or DS-2019. For F
students the Department of Justice SEVIS final rule
amends 8 CFR, Section 214.2(f) to state that, "an F-1
student may be admitted for a period up to 30 days
before the indicated report date or program start date
listed on Form I-20." The same section states that F-2
dependents are eligible for admission if they are able
to demonstrate that the F-1 student has been admitted
and is, or will be within 30 days, enrolled in a full
course of study, or engaged in approved practical
training following completion of studies. Finally for
F-1 students (and their F-2 dependents), the regulation
states that an F-1 student who has completed a course of
study and any authorized practical training following
completion of studies will be allowed an additional 60-
day period to prepare for departure from the U.S. or to
transfer to another school. (See 9 FAM 41.61, N10.1)
3. For M vocational students the rules vary slightly.
Amended section 214.2(m) states that an M-1 student may
be admitted for a period up to 30 days before the report
date or start date of the course of study listed on the
Form I-20 M-N. A student in M nonimmigrant status is
admitted for a fixed time period, which is the period
necessary to complete the course of study indicated on
the Form I-20 M-N, plus practical training following
completion of the course of study, plus an additional 30
days to depart the United States, but not to exceed one
year. Note: An M student may receive extensions to
accommodate a total program period of up to three years.
End note. (See also 9 FAM 41.61, N10.2) An M-1 student
who fails to maintain a full course of study or
otherwise fails to maintain status is not eligible for
the additional 30-day period of stay. Regulations
regarding the admission of M-2 dependents mirror those
of F-2 dependents.
4. Section 214.2(j) as amended by the final rule states
that a J exchange visitor, and J-2 spouse and children,
may be admitted for a period up to 30 days before the
report date or start of the approved program listed on
Form DS-2019. The initial admission of an exchange
visitor, spouse and children may not exceed the period
specified on Form DS-2019, plus a period of 30 days for
the purposes of travel. Reference to this 30-day "grace
period" is to be found in 9 FAM 41.62, N11. A spouse or
child may not be admitted for longer than the principal
exchange visitor.
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Adjudication Guidance
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5. DHS inspectors currently are enforcing the regulation
limiting admission of F, M and J nonimmigrants to 30
days or less before their start/report dates as listed
on form I-20/DS-2019. While this regulation does not
alter existing FAM guidance regarding when such visas
can be issued (see para 8), recipients of these visas
should be advised of this DHS regulation. Posts may use
the following language to advise F, M and J visa
recipients of this regulation:
"To all recipients of an F, M, or J student or exchange
visitor visa: Please be aware that United States
Department of Homeland Security regulations state that
holders of F, M, or J nonimmigrant visas will not be
admitted to the United States until a date thirty days
or less prior to the beginning of your program date, or
start date, as given on your Form I-20 (for F or M
visas) or DS-2019 (for J visas). Please consider that
date carefully when making your travel plans to the
United States."
6. In adjudicating the cases of prospective students who
express a convincing need to enter the United States
more than thirty days prior to their start/report date,
conoffs should carefully review 9 FAM 41.61 N13.2
regarding entry of F and M students prior to enrollment,
and the prospective student visa. If a prospective
student plans to enter the U.S. on a B visa with plans
to change his or her nonimmigrant category to F or M,
the visa issuing officer should explain the DHS
regulation that the prospective student make this intent
clear to the inspector at the port of entry (see reftel
D). The visa issuing officer also must carefully
explain to any would-be F or M applicant planning to
enter in a non-student category more than thirty days
prior to their start/report date that, before beginning
any studies/program, he or she must obtain a change of
classification to that of student. The alien must file
with DHS Form I-539, Application for Change of
Nonimmigrant Status, with the requisite fee (currently
$140.00), for this purpose. The student also must
submit the Form I-20 A-B or Form I-20 M-N and the
required financial evidence to the DHS office at which
the application is made.
7. The DHS regulation and FAM reference discussed in para 6
above relate to F and M visas. There is no FAM guidance
on J exchange visitors that parallels 9 FAM 41.61 N13.2;
nor does the DHS regulation requiring the B visitor to
declare his or her intent to change nonimmigrant
category apply to J exchange visitors. However, the
practical approach is the same - if an exchange visitor
must enter the U.S. more than thirty days prior to the
start/program date in another nonimmigrant status, he or
she must apply to the DHS for a change of classification
to that of exchange visitor. The alien must file with
DHS Form I-539, Application for Change of Nonimmigrant
Status, with the requisite fee (currently $140.00), for
this purpose. The exchange visitor must also submit the
Form DS-2019 and related documentation to the DHS office
at which the application is made.
8. As stated in para five above, the DHS regulation
limiting entry of F, M and J nonimmigrants to thirty
days or less prior to their start/report date does not
impact the existing guidance in 9 FAM 41.61, N13.2:
"Posts must not issue a student visa to an applicant
seeking to enter more than 90 days prior to the
designated registration date. This will prevent abuses
by ''students'' entering well in advance of enrollment and
subsequently not commencing scheduled courses." Note
that this FAM note concerns only the date of visa
issuance, and applies only to F and M visas. There is
no corresponding note in 9 FAM 41.62 concerning J visas.
Given the DHS thirty-day limitation, however, the
Department can see little grounds for issuing J visas
more than 90 days out, in the absence of special
circumstances.
9. The Department is very cognizant of potential visa
processing delays due to new processing requirements,
SAO requirements, etc. While we expect that the
progress that we and our interagency partners have made
in instituting new procedures and in strengthening
existing practices will mitigate potential delays, we
want to give prospective students and exchange visitors
every opportunity to make their start/report dates.
Therefore, the Department thanks those posts that have
been accepting student visa applications in advance of
the 90-day visa issuance limitation, and directs any
posts not currently accepting such applications to do
so. Recognizing that J visas are subject to less
specific timing criteria, the Department appreciates
similar flexibility in the acceptance and issuance of
these cases as well.
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The Impact of SAOs
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10. The Department is aware of concerns expressed by several
posts about how to factor in possibly limited namecheck
clearance lifespans. The issue of SAO clearance
lifespans is the subject of an interagency meeting to be
held the week of March 24. The Department hopes to
provide guidance to the field following that meeting.
For now, conoffs must be cognizant of the prospective
student''s or exchange visitor''s start/report date, and
that date''s impact on the 30- and 90-day "windows" in
calculating when to submit any required SAO cable.
POWELL
