U.S. Department of State: New Guidance for Student Visa Issuance
November 15, 2005

Although the regulations governing the decision-making process for the issuance of student visas for foreign nationals abroad have not changed, a recent U.S. Department of State’s directive reminds U.S. consular officers of present day realities that need to be taken into account when deciding student visa applications.

First, the essential unchanged rules:

  1. the student visa applicant must be in possession of Form I-20 – a document issued by the U.S. institution reflecting that the applicant has been accepted to an educational program at the school,
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  3. the student must have funds, or a sponsor with funds, to cover their educational and living expenses and
  4. the student must have “nonimmigrant intent” – that is, an intention to return to their home county and not remain in the U.S.

It is the last prong that typically gets in the way of student visa issuance, since a good deal of, if not most, student visa applicants wish to ultimately remain in the U.S. following the completion of their educational program. And it is on this issue that the recent State Department directive speaks. More specifically, consular officers are advised that it is the student’s present intention, and not potential long term plans, that should be the integral factor taken into account when reviewing student visa applications – primarily because it is so common for student visa applicants to change their intentions and form long term plans to remain in the U.S. The fact that a student’s intention might change, and they might wish to remain in the U.S., should now not be determinative in denying the visa application, according to the recent memo.

Additionally, like tourist/visitor visa applicants, conclusions regarding a student visa applicant’s intent have traditionally hinged upon the applicant’s “ties” to their home country. But in assessing these ties, consular officers are now to give less weight to a student visa applicant’s property or family obligation – or lack thereof – in their home country, since most student visa applicants are younger, and without dependents or their own assets.

The State Department directive also reminds consular officers not to deny visa applications solely because the proposed educational program would not be useful in the applicant’s home country or that the proposed curriculum is available in the home country.

In practice, though, a consular officer’s exercise of discretion to approve or deny a student visa application is pretty much unreviewable, and thus the real impact of this State Department memo will have is questionable. Time will tell. For the complete text of the memo see http://travel.state.gov/visa/laws/telegrams/telegrams_2734.html.

Copyright © 2005-2008, By Law Offices of Richard Hanus, Chicago, Illinois