A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Monday, January 22, 2024

F & M Students Allowed to file Labor Application and Immigrant Visa Petition


In a recent policy memo issued by USCIS on 12/20/2023, the immigration agency resolved a long-time conflict regarding foreign students' ability to apply for permanent resident status.  Historically, foreign students applying or holding F and M visas were only allowed to study in the United States; they should not harbor other plans such as seeking employment or applying for a green card.  While H-1B and L visa holders are allowed to possess an immigrant intent, F and M students must only have a single intent of studying. Such a discrepancy results in denial of F-1 visa and status to many foreign students.


New Policy Allows Foreign Students to Apply for PR Status

The reality of the situation is that many international students, after earning their degrees and acquiring work experience in the United States, have chosen to stay in the country and become permanent residents. They apply for immigrant status through sponsorship by a family member such as a spouse, or by an employer who offers them permanent employment. To retain these educated students and also to update this archaic single-intent policy, USCIS revised their Policy Manual to confirm international students' ability to apply for permanent resident status without jeopardizing their legal status. 

Specifically, the new policy provides guidance to USCIS officers regarding the adjudication the applications of F and M students and their dependents in the United States for (1) employment authorization, (2) changes of status, (3) extension of stay, and  (4) reinstatement of status.

The policy guidance also confirms that, while foreign students must have a foreign residence that they have no intention of abandoning, they are allowed to be the beneficiary of a permanent labor certification application or immigrant visa petition. The existence of such immigrant petitions does not mean that they cannot demonstrate their intention to depart after a temporary period of stay. 

USCIS recognizes that foreign students are typically younger individuals who do not have strong ties in their home countries, and that they don't necessarily have any long-terms plans regarding their future.  As long as they are able to demonstrate their present intention to depart after their studies, adjudicators should not deny their applications. Such a policy shift is in line with State Department's visa issuance policy and also BIA's case law. 

Simply put, USCIS now distinguishes a foreign student's present intent to study and their longer term plans, which are usually unclear to the student at the present time.  The policy guidance is extremely helpful to foreign students who have opportunities to apply for permanent resident status while they are studying in the United States.  

What about the “mature” applicants? 

One interesting observation is that the policy shift seems to focus on younger students. What about the more mature students who are married and have a family and ties in the United States?  Due to the lengthy green card application process and the per-country visa limits, many foreign students have reached marriage age; they may have already married and started family in the country.  For these mature applicants, they may have to apply for F-1 status again after working for a number of years to update their skills or to maintain their lawful status.  In such cases, it is unclear if USCIS will equally apply this new policy to them. 

Importance of a foreign residence

One thing is clear is that all applicants must provide proof of a foreign residence.  In fact, this is the single underlying requirement for applicants to prove their present non-immigrant intent.  Younger students should be able to meet this requirement by claiming their parent's or family residence in their home country as proof.  For older applicants, it means that they must continue to maintain a foreign residence in order to meet the evidentiary requirement. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

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