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DOS CABLES RE: F-1 Visas 

Abstract: The following DOS cable discusses changes brought about by IIRAIRA 96 concerning F-1 student visas. To enroll in a public secondary school, an F-1 alien must reimburse the school for the full, unsubsidized per capita cost of the alien's education. An F-1 student's tenure at the school is limited to a total of one year or less. Current F-1 alien attendees may not transfer to a public institution without meeting the above reimbursement requirement.

FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMEMBASSY ASMARA
AMEMBASSY SARAJEVO
AMEMBASSY BUJUMBURA
INFO USINS WASHDC

UNCLAS STATE 229829
VISAS

E.O. 12958: N/A
TAGS: CVIS
SUBJECT: P.L. 104-208 UPDATE NO. 8 - INA 214 (l) AND 212(a)(6)(G) - Public
School Students

REF: (A) STATE 210953, (B) STATE 208799, ( C) 219622, (D) 225256, (E) 225321

Summary

1. This cable is number 8 in a series providing information on the immigration provisions of Pub. L. 104-208, the "Illegal Immigration Reform and Immigrant Responsibility Act of 1996" (IIRAIRA 96). Among other things, IIRAIRA 96 established two new sections of law that directly affect foreign students. The texts of the new student provisions, which are found at 214(l) and 212(a)(6)(G), are set forth below with a discussion of their effect. As the new provisions will require coordination between the Department and other agencies, we cannot provide specific operations instructions a this time. Consular officers should not apply the provisions of 214(l) or 212(a)(6)(G) until specific procedural guidance has been made available.

Foreign students in public schools

2. Section 214 is amended by adding the following:

Begin text:

(l)(1) an alien may not be accorded status as a nonimmigrant under section 101(a)(15)(F)(i)(K) in order to pursue a course of study

-(A) at a public elementary school, or in a publicly funded adult education program; or
- (B) at a public secondary school unless -
(i) The aggregate period of such status at such a school does not exceed 12 months with respect to any alien, and
(ii) the alien demonstrates that the alien has reimbursed the local educational agency that administers the school for the full, unsubsidized per capita cost of providing education at such school for the period of the alien's attendance.

(2) An alien who obtains the status of a nonimmigrant under section 101(a)(15)(F)(i) in order to pursue a course of study at a private elementary or secondary school, or in a language training program that is not publicly funded shall be considered to have violated such status, and the alien's visa under section 101(a)(15)(F) shall be void, if the alien terminates or abandons such course of study at such a school and undertakes a course of study at a public elementary school. In a publicly funded adult education program, in a publicly funded adult education language training program, or at a public secondary school (unless the requirements of paragraph (1)(B) are met). (Amended by section 346 of Pub. L. 104-208, 9/30/96)

3. Section 212(a)(6) is amended by adding the following:

Begin Text:

(c) Student visa abusers. - An alien who obtains the status of a nonimmigrant under section 101(a)(15)(F)(i) and who violates a term or condition of such status under section 214(l) is excludable until the alien has been outside the United States for a continuous period of 5 years after the date of the violation.

Discussion of new 214(l)

4. Under the new provisions, an alien cannot, under any circumstances, receive an F-1 visa to attend a public elementary school or a publicly funded adult education program. An alien can receive an F-1 visa to attend a public secondary school. If the school has been: (1) reimbursed for the full, unsubsidized per capita cost of the alien's education and, (2) the alien's tenure at the school (in F-1 status) is limited to a total of one year or less. The statute pertains only to persons applying for F-1 status. It does not affect aliens attending public schools/programs on J, F-2, H- 4, L-2, B-2, or any other NIV status allowing elementary or secondary school attendance.

5. Clearly, the new law will have significant impact on alien students by restricting foreign enrollment at public schools in the United States. Private schools at the elementary level will likely benefit from an increase of foreign students moving out of the public school sector. Although we are unable at this time to anticipate what the final procedures for administering the tudent provisions of IIRAIRA 96 will be, we anticipate the Immigration and Naturalization Service necessarily will have to structure new regulations and operating instructions in such a way as to permit the issuance of I-28s only after the alien has met the requirements of 214(l).

Under such a scenario, the presentation of an I-28 issued by a public school would be prima facie evidence of an alien having met the requirements of 214(l).

6. Many questions remain to be answered in connection with the administration of 214(l). For instance, it is unclear precisely what constitutes a "full, unsubsidized per capita cost" for a foreign student's enrollment in a school or program.

7. Section 214(l) becomes effective November 30, 1996, 60 days after IIAIRA 96's enactment. It applies only to individuals who seek to obtain F-1 status after that date, or whose F-1 status is extended after that date. Persons who are issued F-1 visas before November 30, 1996 are not, repeat, not subject to the provisions of 214(l). However, applicants should be advised that they will become subject to 214(l) should they file for an extension of status, or apply for a new F-1 visa after November 30, even in connection with the same academic program.

8. Paragraph 2 of section 214(l) prohibits foreign students attending private schools in F-1 status from transferring into public schools or publicly funded programs unless they meet the same payment requirements and the limitations as F-1 visa applicants. The statute not only prohibits a transfer in such instances, it also automatically voids the visa of an alien who violates the conditions of 214(l). Further, section 212(a)(6)(G) renders an F-1 alien student excludable as a "student visa abuser" if he/she violates a term or condition of section 214(l). An alien found ineligible under 212(a)(6)(G) must remain outside the United States for a continuous period of five years before he/she will be qualified to apply for another visa. Class ineligibility codes are being amended to comply with the new provisions of law.

9. The Department will be working with INS to develop regulations and procedures for implementing the new provisions. We expect to have instructions to posts before the effective date. In the meantime, posts should continue to process F-1 visa applications under existing instructions.

10. Minimize considered.

Christopher



Abstract: State Department Cable Number 11 on new law provisions impacting
on public school attendance of F-1 visa holders.
====================
R 280220Z NOV 96
FM SecState WashDC
To All Diplomatic and Consular Posts
Special Embassy Program
AmEmbassy Asmara
AmEmbassy Sarajevo
AmEmbassy Bujumbura
Info USIA WashDC 0000

USINS WashDC
Unclas State 245754
USIA for GC/V
E.O. 12958: N/A
Tags: CVIS

Subject: P.L. 104-208 Update No. 11 - Implementing Public School Provisions of INA 214(l) and 212(a)(6)(G)

Ref: A) State 229819 B) State 239978, C) State 210953

Summary:

1. This cable is Number 11 in a series providing information on the immigration provisions of Pub. L. 104-208, the "Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA 96). This cable will discuss implementation of the new provisions on student visas (new INA section 214(l) and 212(a)(6)(G). The Department and INS are working on regulations covering these provisions. As the regulations will not be completed before the effective date of the two sections (November 30, 1996), consular officers should follow interim guidance below.

Section 213(L) - Public School Restrictions

2. Section 214(L) prohibits aliens in F-1 status from attending public elementary schools (grades K through 6) or publicly-funded adult education programs. Beginning November 30, 1996, Posts may not issue F-1 visas for study in such schools or programs. INS intends to define "publicly-funded adult education" as programs run tuition-free at or in conjunction with public secondary schools. It does not/repeat not apply to schools such as community colleges which receives public funds but charge foreign students tuition.

3. Section 214(L) also places payment requirements on F-1 studies in public secondary schools. Beginning November 30, 1996, Posts cannot issue an F-1 visa for study in a public secondary school (grades 7 through 12) unless the applicant demonstrates that he/she has reimbursed the school authority for the unsubsidized, per capita cost of education for the intended period of
study.

4. In some instances, reimbursement might be indicated on the I-20, although at present this is not required. It is likely that few public schools or prospective students will be aware of the new provisions of the law. Therefore, posts may continue to accept for visa issuance an I-20 which does not address the question of payment, provided the student presents independent evidence of the reimbursement mandated under Section 214(L).

5. For the interim, F-1 applicants for public secondary schools who lack evidence of reimbursement should be refused under section 221(g), consular officers should advise such applicants to arrange reimbursement directly with the school authority, and to reapply with proof of payment.

6. It is the school's responsibility to determine what amount constitutes the "unsubsidized capita cost of education." Consular Officers should not inquire into the calculation. Cases which appear to be deliberate attempts to circumvent the law should be referred to the Department. Posts should also note that section 214(L) does not/not require reimbursement for public school attendance which took place prior to November 30, 1996.

12-Month Limit on Attendance

7. Under Section 214(L), an alien cannot attend U.S. public secondary schools while in F-1 status for more than an aggregate of 12 months. Public secondary school attendance in a status other than F-1 (including unlawful status) does not/repeat not count against the 12 month limit. CA/VO believes that public secondary school attendance in F-1 status prior to November 30, 1996 likewise will not count against the 12 month limit.

8. An F-1 visa cannot be issued if the proposed length of study listed on the I-20 would take the student beyond the permitted 12 months.

Transfer from Private Schools

9. F-1 students who, on or after November 30, 1996, transfer from private to public secondary school must also fulfill the requirement of section 214(L). If an F-1 student in a private elementary school or publicly financed adult education transfers to a public school or program, the visa is considered void, and the student is in violation of status. Likewise, if an F-1 student in a private secondary school transfers to a public secondary school without reimbursing the public school for the unsubsidized cost of education, the visa is considered void and the student is in violation of status.

Ineligibility Under Section 212(A)(6)(G)

10. The ineligibility for student visa abusers under the new section 212(A)(6)(G) is limited in scope. It does not apply to all violations related to the public school provisions of Section 214 (L)

11. Under Section 212(A)(6)(G), an alien who obtains F-1 status on or after November 30, 1996, and subsequently uses that status to (1) attend a public elementary school, (2) attend publicly funded adult school education, or (3) attend a public high school without reimbursing the school authority for the unsubsidized per capita cost of education, shall be excludable until outside the U.S. for a continuous period of five years.

12. Again, public school attendance while in a status other than F-1 (including unlawful status) should not be considered for the purposes of section 212(A)(6)(G). In addition, the section only applies to students who obtain F-1 status after the effective date of the New law. If a student was attending a public school in F-1 status before November 30,1996, continuing attendance after that date would not render him/her ineligible under section 212(A)(6)(G).

13. When regulations are completed, CA/VO believes they will-permit this exemption only while the student remains in continuous F-1 status within the U.S. If such a student departs the U.S. or falls out of F-1 status on or after November 30, 1996, he/she will have to meet all the provisions of section 214(L) to obtain an new F-1 visa. In that case, once the student is readmitted to the U.S., any subsequent violations of section 214(L) will render him/her ineligible under section 212(A)(6)(G)

14. Minimize considered.

Warren Christopher