U.S. Student Visa: Answers You Need to Know
Studying in the USA is the dream many of you cherish. Some of you might have started preparing yourself for it by appearing for TOEFL (Test of English as a Foreign Language) and GRE (Graduate Record Examination). In case, you have already gone through all that and gotten through to a University of your choice, then the only step left is - getting a US student visa.
Now, most sites can provide you with information such as necessary documents, where to apply and how to apply etc. However, this information doesn’t necessarily cover the unique questions that pop up here and there. We, at Immitips have compiled a few points that seem to confound many of our student readers. Here is what we came up with:-
GETTING A VISA
Q: I have my I-20 form from the college. When should I apply for a visa?
As per rule you can apply 120 days before the date of enrolment mentioned in the I-20 form. Our suggestions: Earlier the better. Apply on the 120th day prior to the date of enrolment, if you can. But note though that you can’t enter the US before 30 days from the date of enrolment, even if you get your visa earlier.
Q: What’s the annual quota for student visas?
Well here is the good news. There is no ceiling or quota for US student visas. The bad news, you only have a short window within which you need to get a visa, as spelled out by your enrolment date. Apply online, its faster.
Q: Doesn’t an I-20 form issued by a university guarantee a Visa?
Unfortunately, the answer is no. I-20 form is merely a requirement. The rest depends on how well you do in your interview. See our Tips for F1 Visa Interview to find out how you can make sure that Visa is yours.
Q: If my visa is rejected, can I apply again and how soon?
Yes, you can apply any number of times that you want. Most often, the first visa rejection allows you to get an interview date within 12 days. And you have to turn up with whatever documentation you didn’t have the first time.
If you get two refusals within a period of six months, you will then have to start from the beginning by getting a visa appointment and shelling out the visa fees ($100 processing fee and the VFS Service fee), and fresh documentation.
But most importantly, if your visa is denied, you are not going to be able to meet your University enrolment date. So, let’s concentrate on NOT getting your visa rejected.
NOTE: Most often Visas are denied because the applicant could not prove that he or she is not using the Student Visa to gain entry into US and become a citizen later. So, make sure your paperwork and your words convey just how attached you are to your own country. If the US consul specified a reason for denying your visa, your new documentation should cover that drawback.
Q: My University did not require me to take the TOEFL or GRE. Do I need to show any proof of that?
Yes. You will have to provide a letter issued by the university corroborating your statement. But you might still face a problem at the interview because of the lack of standardized test scores.
Q: I have relatives in the US. Will that affect my visa chances?
Even though there is no legal issue, the answer is most like YES. Especially if you have a parent or a spouse who is a US citizen, you are going to have to prove that your ties to your home country are stronger.
And whatever you do, DO NOT lie about having a relative in the U.S. Its better to face the music by being candid then the fact come up through any other issue later.
Q: Can I change schools during my studies?
No. Well at least not before completing a year of study or the course duration, which ever comes first. But we suggest, pick a school and stick to it. Changing schools may not work in your favor in future if you want to extent or renew your visa.
In case, you have just applied and then had a change of heart, apply separately again for your second choice of college as soon as possible, so that you don’t miss the enrolment date.
Q: What documents can I show as proof that I am coming back?
There is no fixed list of documents that we can suggest. But whatever you choose should show your economic and social ties to the country. Like property owned by you, social ties like parents, spouse or fiancé waiting for you, other social obligations like long term association with local charities or organizations. Anything helps. Also, be convinced about your own arguments before you present them. The US Consuls faces lots of applicants’ everyday and any hesitation in your part can immediately disqualify you.
FINANCING
Q: What do I need to show that I can afford to attend school in the US?
Look at Part 7 on your Form I-20. It will tell you the amount of funding you will need to cover the first year’s expenses. This amount includes tuition, fees, living expenses, (also expenses of dependents if applicable) etc. You have to show you have enough assets/funding to cover this amount immediately. Many applicants choose to pay the the first year’s fees and show that receipt. It will be an added benefit, but it’s not mandatory.
If you are going for longer durations like two-year Master’s program or Five-years research program etc, you will have to show proof of assets and funding to cover the entire duration of studies and not just the first year.
Q: I plan to finance my education myself. What do I need?
Get yourself a Foreign Exchange Release Permit from an authorized bank. You will need to show how you intend to transfer your funds from India to the US. You can also show a sponsor in the US. But that may work against you by branding you an intending immigrant.
Q: Can I take bank loans to for my studies?
Yes you can. But you will have to show documentation to prove that you can repay the loan. Talk to the representative from the bank or institute that is offering you the loan. In most cases, they know what documents you will need from them.
Do not take a huge loan as that can make a negative impact on your visa application. It should not look like that you cannot finance your education by yourself at all.
Q: Is it mandatory to pay the first year’s tuition expenses?
No. But in most cases paying the fees and showing a receipt from the University can work in your favor as far as proof of financing goes.
SPONSORSHIP
Q: Is having a foreign sponsor a drawback?
Yes and No. I say no because, looking at the enormous cost of education, a US sponsor sounds like a logical option. More then half of the foreign students in US are dependent on aids or scholarships. Just make sure, you have good answers for questions like why and under what terms is the person in US sponsoring you. Here, if you can show that you intend to come back to your country and use the education to work here, then there would be fewer problems with this issue.
Q: Will it work against me if I have two sponsors – one in India and the other in US?
Legally, this is not an issue. But again, you will need show that having half sponsorship from US does not constitute as motive for migration.
Copyright © 2007, Immitips.com. All Rights Reserved
Transition from Student to a Professional
It’s become quite common for foreign students in US to opt for professional employment in the U.S. itself after completing an academic program or practical training. However, a person holding a student visa cannot simply start working as and when he or she wishes to. For that, the student requires a change of Visa status, from student visa to work visa, which would then allow him or her to work in the US legally. The most preferred is the H-1B visa category, which eventually allows the visa holder to apply for a citizenship in the long run as well.
H1B Cap and Student’s Dilemma
A limited number of H-1B visas are allotted per fiscal year i.e. October 1- September 30, by the United States Citizenship and Immigration Service (USCIS). These Visas become open for application six months before the beginning of the fiscal year. Which means a student can apply for a H1B say on April 1, 2006 with a work start-date of October 1, 2006.
Unfortunately, the number of students seeking H-1B status, and the number of companies seeking to hire them is much greater then the allotted number. Consequently the number of H-1B visas available for those holding bachelors’ degrees, which is capped by law at 65,000 per fiscal year, gets over long before the end of fiscal year.
For fiscal 2007 the cap was reached by May 2006, even before the fiscal year had started. But because they were the following year’s allotment, all these H-1B visas had start dates of October 1, 2006 or later. This led to a problem for students who were graduating this year or completing OPT.
The students holding F-1 visa are generally approved for “duration of status,” or for the length of time the holder maintains status. The visas expire when that activity ends, i.e. when the academic year is over and the course completed. Now, unless the students have made the change to H-1B, they are at that point immediately out of status and are legally required to return home.
Now, if the earliest H-1B start date a student can secure is October 1, 2006 while his or her student status expires in June, 2006, he or she will either have to leave the U.S. by the expiration of the grace period or remain in the U.S. unlawfully.
Previously, the immigration service used to extend the duration of status for F-1 visa holders in such situations. However, for the coming year we are yet to see any sign that the government will grant that relief. In such a situation F-1 visa holders who have filed for change of status will find the H-1B classification approved but the change to H-1B status denied. This will lead to a “status determination” - a finding that that the F-1 student is out of status - and they will be forced to return to the country of origin and process the application from there and lose valuable time and money in the process.
Other Avenues Available
There are a few alternate options open to the students. For students who have not yet filed for change of status, we suggest - avoid status determination by designating the application for consular notification, not change of status, and apply for the H-1B at a border post in Mexico or Canada.
In such cases, the student may submit the visa application as soon as the H-1B petition is approved by the immigration service. The Department of State has indicated that most consular posts will process the H-1B application before October 1. However, the visa holder won’t be able to enter the U.S. on the H-1B until 10 days prior to the effective date of the approval notice.
Another possible avenue around the cap gap is the extra allotment in the present fiscal year of 20,000 H-1B visas for those graduating with master’s degrees or higher from U.S. institutions.
Student should also explore employment at an institution of higher education, a related or nonprofit entity, a nonprofit research organization, or a governmental research organization as they are not subjected to the cap.
What is happening on the legislative front?
There are currently proposals in congress that would make significant changes to immigration law for international students and scholars, but it is still too early to know which proposed legislation will ultimately become law. One of the proposed changes would increase the H-1B cap to 115,000, and another proposal would exempts all who have received an advanced (Master’s) degree from a U.S. institution from the H-1B cap. Copyright © 2006, Immitips.com. All Rights Reserved
Do you have a question regarding this article? Email us and a legal representative from our sponsors will answer your question in this section.
Obama’s Immigration entourage encouraging to foreign born workers
AC-21 I-140/I-485 Portability in the Context of Recession in US Market
One option, therefore, can be to update the interpretations of the upcoming AC-21 Act to suit the current context. However, the reality is that the Act is unlikely to be enacted until after the US presidential elections are over, which means another fiscal year at least. It is more likely that the agency will shift to a more offensive approach towards tackling the mounting pressure, specifically through increased audits and reinforcement of compliance by introducing severe penalties.
Of course, these are only conjectures as USCIS has not given any indications of taking either step yet. Having said that, USCIS is not sitting idly by either and has issued additional guidance’s to the current memo, indicating the agency is already conscious of the current context.
1. H-1B Extensions Beyond Sixth-Year
This particular guidance update was expected as significant changes have been made to the Labor Certification program recently – specifically the termination of LCA substitution and establishment of a 180-day validity period on approved LCs. Additionally, USCIS has also resumed its premium processing of I-140 petitions for select beneficiaries whose H-1B are nearing expiration.
Under the new guidance, USCIS will be allowed to grant extensions in one-year increments to H1B visa holders with whose LCA or I-140 have been filed at least one year ago, unless (1) the LCA is denied, (2) previously approved LCA is revoked, (3) I-140 petition is denied, (4) I-485 is denied or granted or if (5) the LCA has expired by the time application for extension is made.
USCIS will also be allowed to grant extensions in three year increments to beneficiaries with approved I-140 petitions but with no visa number availability, until such time as the foreign national’s application for adjustment of status has been processed and a decision has been made. The new guidance also extends this protection to beneficiaries whose immigrant preference category is totally “unavailable.”
Additionally, to determine the visa number availability, USCIS has been directed to follow the Visa Bulletin that was in effect at the time the Form I-129 was filed, rather than the current Bulletin.
2. I-140 Portability Pursuant to AC-21 Act
The updated guidance is not really good news for beneficiaries planning to port with pending I-140 or I-485. Currently, the AC-21 rules provide that I-140 portability is allowed for beneficiaries whose I-485s are pending for 180 days or more, provided the beneficiary’s new position falls under the same occupational classification as the original position for which the petition was filed.
However, under the new guidance, I-140 portability for beneficiaries whose I-485s are pending for 180 days or more will be allowed only if the petition is approved. Consequently, as I-140 applicants are now facing a huge backlog that is unlikely to clear before 2011, they can forget about porting, once the 180 days are over.
3. Portability Issues for Beneficiaries who Report LCA Violations
This guidance is basically an umbrella of protection extended to employees who are forced to change employment on the face of retaliatory action by previous employer, for reporting any violation of LCA conditions by the employer. Such an individual will be granted additional time to find new employment as his actions were initiated under “extraordinary circumstance”.
For those who have been waiting endlessly for permanent residency, these updates are a mixed bag. The new guidance for beyond 6th year extensions are a welcome change for those who are facing the “Unavailability” of visa numbers, specially the EB-3 Category which, the Visa Bulletin reports, will remain unavailable till October 1st 2008. However, for those applicants who’s LCAs are nearing their expiration dates, availing the AC-21 portability will not be an option once the 180-day period runs off.
Conclusion
USCIS seems to be addressing the issue and making changes to adapt to the new employment situation and the expected increase in demand for change of employment by non-immigrant aliens with pending Adjustment of Status applications. Still there is room for improvement and we would advise those who are considering using the AC-21 Portability options to thoroughly weigh their options and scrutinize the Aytes memo with its present updates, before committing to any such step.
Denial of AC-21 Ported I-485 Applications without NOID
Interpretations and Non-disputable reasons
Recently, there have been a number of denials issued to AC-21 Ported I-485 Applications without the Notice of Intent to Deny (NOID). While it is not yet clear if the non-issue of the NOID was in accordance to the rules or a mistake on the part of junior case officers, we are going to walk our readers through the procedures to clarify a few guidelines and their interpretations related to the AC-21 portability law.
The American Competitiveness in the Twenty-First Century Act of 2000 (AC-21) is the procedure commonly undertaken by H1-B workers while porting from one employer to another. However, since the Act is yet to be made into law, USCIS currently uses the Aytes AC-21 Memorandum of 2005 for guidance.
Before we delve into the possible reasons for denial of an AC-21 ported I-485, we would like to remind our readers that the Aytes Memo is not legally binding. Consequently, actions taken under interpretation of its guidance statements cannot be legally disputed in many cases either. However, that doesn’t mean the interpretations are fluid or can be bent to accommodate personal interpretations. Hence, we hope the reasons for the recent denials without NOID are made clear soon. In the meantime, let us go through a few possible reasons for such denials.
As per the Memo, AC-21 ported I-485 (Petition for Adjustment of Status) can be denied if the employer withdraws the approved I-140 Immigrant Petition for Alien Worker on which it is based and the alien ports within 180 days of the I-485 filing. However, if the beneficiary ports after 180 days of filing of I-485, the petition should not be denied. In case USCIS does not get a AC-21 portability report by the time the I-140 is withdrawn, the agency is obliged to issue a Notice of Intent to Deny (NOID), allowing the petitioner the opportunity to furnish the details.
However, a lot is left to interpretations of the guidelines, as we mentioned earlier. The Memo and USCIS updated guidelines indicate that in a case involving withdrawal of I-140 petitions, the employer must maintain a clear Intent of Continuing Offer of Employment and the employee must maintain a similar Intent to Work for the Employer throughout the process. These interpretations are often drawn from the content of the employer’s statement of withdrawal and other materials. The case officer may interpret whether there was a clear intent indicated or not and base his or her decision accordingly. Denial based on such an interpretation cannot be disputed.
Consequently, while the Memo does mandate the issuing of a NOID to provide the employer and employee with the opportunity to furnish evidence regarding porting, the interpretation of “intent” can also influence the interpretation of the agency’s obligation regarding the NOID.
USCIS can also issue a denial of an AC-21 ported I-485 on the basis of “Good Cause”, whereby the agency interprets that frauds, misrepresentation, or any belatedly detected facts regarding the case are good enough cause to deny the petition, even if the other procedures were followed diligently. In such cases, the guidelines do not mandate issuing of NOID and as such the decision to issue a outright denial cannot be disputed.
Related article AC-21 I-140/I-485 Portability in the Context of Recession in US Market