October 3, 2003
Over the last few years, the confusion on when or whether an
individual in B status may study in Intensive English Programs
has escalated. There has been much discussion as to whether it
is the number of hours per week (18 hours or more) or short-term
vs. long-term study that determines the F status. In meetings
attended by representatives of the State Department and BCIS
over the past two years, we have been told that the key factor
in determining status is the "purpose" or "intent" of the visit
to the United States. We have also been told by BCIS officials
that if study in an IEP is incidental to the purpose of the
visit, then visitors on a B visa may even enroll in courses
that meet over 18 hours per week, for consecutive weeks, as long
as study is incidental to the purpose of the visit. Furthermore,
according to regulations, study on F status is only allowed for
a full course of study at an approved institution. Other representatives
of BCIS have stated that whether a student enrolls for ten
hours, one week, or one month, if the purpose of visit is to
study, then the student must enter on an F visa, regardless of
the number of hours per week or length of the program.
Following are excerpts from documents to which we have referred
for guidance on the issue:
• From NAFSA's Adviser's Manual of Federal Regulations
Affection Foreign Students and Scholars: A full course
of study is defined as "study in any other language, liberal
arts, fine arts, or other nonvocational training program, certified
by a designated school official to consist of at least 18 clock
hours of attendance a week if the dominant part of the course
of study consists of classroom instruction, or to consist of
at least 22 clock hours a week if the dominant part of the
course of study consists of laboratory work;" [ 8 CFR
214.2 (f)(6)(i)]
• From the website of U.S. Department of State,
Bureau of Consular Affairs, Visa Services:
"If you are going to the U.S. primarily for tourism, but
want to take a short course of study of less than 18 hours
per week, you may be able to do so on a tourist visa .
You should inquire at the appropriate U.S. Embassy or Consulate.
If your course of study is more than 18 hours a week, you will
need a student visa."
• From an INS Memorandum of May 22, 2002 regarding
Commuter Part-time Students Residing in Contiguous Territory:
" An alien seeking to study may be classified as a student
only if he or she intends to pursue a full course of study
at an approved institution . A full course of study is
defined as tantamount to full-time status at an INS approved
institution [8 CFR 214.2(f)(6) and 214.2(m)(9) ]."
" aliens who seek to enter the United States regularly but
primarily to pursue less than a full course of study are neither
visitors nor students and are ineligible for student visas
or visitor status." The POE's are not to admit visitors
for business or pleasure whose purpose for entering the United
States is to pursue a part-time course of study at a college
or university. The term "course of study" implies a focused
program of classes leading to a degree or that teaches a potential
vocation. Isolated, casual, short-term classes, such as a single
English language or crafts class, would not be part of a "course
of study."
• From an INS Memorandum dated October 9, 1987:
"The Act defines a student as "an alien having a residence in
a foreign country which he has no intention of abandoning, who
is a bona fide student qualified to pursue a full course of study
and who seeks to enter the United States temporarily and solely
for the purpose of pursuing such a course of study'".
"Thus, by definition, an alien whose primary purpose in coming
to the United States is to study may not be classified as a
visitor, and an alien seeking to study may be classified as
an F or M student only if he intends to pursue a full course
of study at an approved institution."
• From the Federal Register, Friday, April 12,
2002 Interim Rule: Requiring Change of Status from B to F-1
or M-1 Nonimmigrant Prior to Pursuing a Course of Study.
"This interim rule amends the Immigration and Naturalization
Service regulations by eliminating the current provision allowing
a B-1 or B-2 nonimmigrant visitor for business or pleasure to
begin attending school without first obtaining approval of a
change of nonimmigrant status request from the Service."
• From an INS Memorandum for Regional Directors
following the April12, 2002 Interim Rule:
"The prohibition against beginning a course of study prior to
obtaining Service approval of a change of nonimmigrant status
request is limited to B-1 or B-2 nonimmigrants. The term "course
of study" implies a focused program of classes, such as a full-time
course load leading to a degree or, in the case of a vocational
student, some type of certification. Casual, short-term classes
that are not the primary purpose of the alien's presence in the
United States, such as a single English language or crafts class,
would not constitute a "course of study. " Courses with more
substance or that teach a potential vocation, such as flight
training, would be considered part of a "course of study" and
thus would require approval of a student status;"
• From the Federal Register: August 11, 2003.
Department of State, Final Rule.
" The Department is amending its regulations to add two new
nonimmigrant symbols to the nonimmigrant classification table.
The amendments are necessary to implement recently enacted legislation".This
legislation creates two new nonimmigrant visa classifications
(F3 and M3) for citizens and residents of Mexico or Canada who
seek to commute to the United States for the purpose of attending
an approved F or M school.
" Prior to the September 11 terrorist attacks on the United
States, Canadian and Mexican citizens living in their home countries,
but traveling back and forth across the border to take part-time
classes in the United States were admitted into the country as
visitors. However, due to security concerns in the aftermath
of the attacks, the Immigration and Naturalization Service (INS),
now the Department of Homeland Security (DHS), stopped admitting
these part-time students as DHS held that they were not eligible
for admittance to the United States as visitors, since their
purpose was to attend class. They also were not eligible for
either F1(academic) or M1(non-academic or vocational) visas because
these classifications require students to attend class on a full-time
basis."
From this we can see that there seems to be a conflict between intent
vs. study . If the intent is to study, then study must
be only full-time, so any intent on studying on a part-time
basis is not allowed on an F. But intent to study on a part-time
basis is not allowed on a B either, because nonimmigrants are
not allowed to be admitted as visitors if the intent is to
study. Suppose a casual, short-term English class is the only
intent of the visit of the nonimmigrant and not a full course
leading to a degree. Does this constitute an intent to study?
Is this any different than a nonimmigrant who combines tourism
with a short-term (and not necessarily part-time) English program?
As we have stated previously, English language programs have
expanded since the regulations were originally written to meet
the needs of a variety of individuals, many of whom wish to study
on a short-term basis and return to their home country. To allow
these individuals to enroll in our programs as a nonimmigrant
with B classification, we are not seeking a big departure from
the current regulatory scheme. Rather, we propose to work with
the government to help address the shortcomings of the regulations
and suggest several ways that we might address the problem.
Some of these suggestions are:
- To redefine the term "study" to exclude all short-term
courses (up to 90 days) or perhaps adding a new definition
of "short-term study". Currently there is no definition
of "study". The question remains open as to whether any activity
involving learning is study, thereby requiring a student
visa.
- To allow nonimmigrants from visa waiver countries to enter
the United States on the visa waiver for short-term training,
which does not fall under the new definition of study .
Nonimmigrants from visa waiver countries do not currently
pose a concern for national security.
- To allow nonimmigrants from non visa waiver countries
to enter on a B visa for short-term training, which does
not fall under the new definition of study and to only enroll
in SEVIS approved schools .
We appreciate the opportunity to voice these concerns and welcome
future discussions to enhance our common goals of being able
to provide English language instruction to the wide spectrum
of potential students from around the world and to continue the
mission of "people-to-people diplomacy", which is achieved through
international education and is critical to our national interests.
Karen Decker
Vice President Advocacy
American Association of Intensive English
Programs
