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STATE DEPARTMENT PROVIDES GUIDANCE FOR STUDENT
VISAS
by Michael J. Gurfinkel, Esq.
In 1996, Congress passed a law (Section 214(l)),
placing new restrictions and requirements on the issuance of student
visas, and on the ability of aliens to attend certain schools
in the U.S. Recently, the State Department issued a simplified
set of guidelines for various Embassies and consulates all over
the world as a "refresher" on Section 214(l). Here are
some of the points made in the State Department cable:
- Under Section 214(l), a foreign student may not
be accorded F-1 status (issued a student visa) to study at a
public elementary school or a publicly funded adult education
program.
- Foreign students may not be issued a student
visa (F-1) to attend a public secondary school, unless
the aggregate period in F-1 status at such a school does
not exceed 12 months, and the student demonstrates that
he has reimbursed the school district for the full, unsubsidized
per capita cost of his education at the school.
- Section 214(l) applies only to foreign students
in F-1 status (i.e. those to whom an I-20 has been issued).
It does not apply to aliens studying in J-1 status, or
to dependents of aliens in the U.S. on long-term visas,
such as students who are in F-2, L-2, or H-4 visas. The restrictions
also do not apply to aliens attending public schools illegally
in B status (visitors), or in some other unlawful status, such
as those who entered the U.S. without inspection.
- Section 214(l) does not apply to students who
have I-20s from private schools at any grade level. However,
students in F-1 status, who want to transfer from a private
to a public school, must meet the requirements of Section 214(l).
- If an F-1 student transfers from a private
elementary school or a private adult education program
to a public elementary school or a public adult education
program, the student is considered to have violated his
F-1 status, and his student visa will be voided. Likewise, if
a F-1 visa holder transfers from a private high school
to a public high school without reimbursing the public
school for the unsubsidized cost of instruction, the student
is in violation of status and his F-1 visa will be invalidated.
- Section 214(l) is not retroactive. It applies
only to students applying for F-1 visas, extensions of F-1 stays,
or admission into the U.S. in F-1 status after November 30,
1996, when the law went into effect. Foreign students who
were attending U.S. public schools before November 30,
1996 and have continued in the same schools may remain in school.
However, if the student applies for an extension of F-1 status,
or applies for a new F-1 visa, after November 30, 1996, the
student will be covered by Section 214(l) restrictions.
- "Public elementary schools" include
kindergarten through eighth grade. Thus, no student visa will
be issued to attend public elementary schools.
- "Public adult education programs" covered
by Section 214(l) include any adult education or training program
operated by, through, or for a public school district,
agency, or authority, regardless of whether they charge tuition
or not.
- Section 214(l) does not apply to post-secondary
schools, such as community colleges, which receive public funds,
but charge full non-resident tuition to foreign students.
- Student (F-1) visas may not be granted to students
wishing to attend public high schools (Grades 9-12) if the length
of study indicated on the I-20 exceeds the 12-month cumulative
period. F-1 visas to attend public secondary schools should
be limited to 12 months validity.
- Public secondary school attendance in a status
other than F-1 (including unlawful status) does not count against
the 12-month limit. Also, attendance in F-1 status prior to
November 30, 1996 does not count against the 12-month limit.
In addition, continuous attendance in F-1 status prior to November
30, 1996, but continued after that date does not count against
the 12-month limit.
- Public secondary schools must actually collect
the reimbursement for the full, unsubsidized, per capita cost
of providing the education before an F-1 visa can be
issued to the student. The school will determine the amount
to be paid.
- Students whose relatives have declared themselves
as the student's "legal guardians," are not
exempt from the provisions of Section 214(l). These students
still have to pay the full, unsubsidized, per capita cost of
the education. A student's supposed status as a "resident"
of the school district (by claiming that they live with a relative
in that school district) is not relevant. They must nevertheless
comply with Section 214(l).
- Students who violate the provisions of Section
214(l) would be barred from reentering the U.S. for five continuous
years upon departure. The 5-year bar is specifically limited
to F-1 holders who violate the public school provisions of Section
214(l). This penalty does not apply to other student violators,
such as aliens who enter without inspection, or who enter on
a visitor's visa, and then attend public schools without complying
with Section 214(l) provisions.
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