International students and scholars invest significant money and energy into coming to the United States. Yet, they face one last hurdle after making that investment – an interview at a US consulate for an F or J visa stamp in their passports. That is the document that grants entry. The uncertainty comes from varying interpretations of the phrase “immigrant intent” under section 214(b) of the Immigration and Nationality Act (INA). The consular officer will not grant the visa stamp if it appears the student or scholar will stay in the United States permanently. Even a single denial in the age of social media can lead to viral stories, and can discourage international students and scholars from choosing the United States.
In a 2005 cable, then-Secretary of State Condoleeza Rice called for reasonableness in evaluating the temporary intent requirement for F-1 international students. She basically said (although much more diplomatically), “it’s hard to figure out the long term plans of a young person” and “trying too hard to do so will lead to inconsistent, subjective decisions.” Specifically:
The context of the residence abroad requirement for student visas inherently differs from the context for b visitor visas or other short-term visas. The statute clearly pre-supposes that the natural circumstances and conditions of being a student do not disqualify that applicant from obtaining a student visa. It is natural that the student does not possess ties of property, employment, family obligation, and continuity of life typical of b visa applicants. These ties are typically weakly held by student applicants, as the student is often single, unemployed, without property, and is at the stage in life of deciding and developing his or her future plans. This general condition is further accentuated in light of the student’s proposed extended absence from his or her homeland. (see 9 FAM 41.11 N2.) Nonetheless, the consular officer must be satisfied at the time of application for a visa that an alien possesses the present intent to depart the U.S. at the conclusion of his or her studies. That this intention is subject to change or even likely to change is not a sufficient reason to deny a visa.
In 2017, the Trump Administration effectively rescinded the Rice cable by amending § 402.5-5(E)(1)(b) in Volume 9 of the State Department’s Foreign Affairs Manual (FAM) :
Examining Residence Abroad: General rules for examining residence abroad are outlined in <href=”#m401_1_3_f_2″>9 FAM 401.1-3(F)(2).If you are not satisfied that the applicant’s present intent is to depart the United States at the conclusion of his or her study or OPT, you must refuse the visa under INA 214(b). To evaluate this, you should assess the applicant’s current plans following completion of his or her study or OPT. The hypothetical possibility that the applicant may apply to change or adjust status in the United States in the future is not a basis to refuse a visa application if you are satisfied that the applicant’s present intent is to depart at the conclusion of his or her study or OPT.</href=”#m401_1_3_f_2″>
Most higher education organizations support bringing back the Rice cable. We agree. We take that one step further to recommend expanding the Rice cable to J-1 exchange visitors.
We first started to consider this idea in 2018, when there seemed to be a pattern of J-1 trainee physicians refused visas under INA § 214(b). We then went back to take a closer look. Consular officers seemed to be applying general guidance on INA § 214(b) based on B visas for tourist and temporary business visitors, rather than focusing on the separate nature of the J-1 program as directed in § 401.1-3(F)(2)(a) in the FAM: “When adjudicating this requirement, it is essential to view the requirement within the nature of the visa classification. Discussion of the requirement in the relevant sections will provide guidance.” Therefore, we asked the State Department to issue a cable to all diplomatic posts, clarifying the INA § 214(b) requirement for J-1 exchange visitors, as Secretary of State Rice did for F-1 students. That has not happened yet, but hope springs eternal.
As background, INA § 214(b) creates a presumption that all nonimmigrants coming to the United States are “intending immigrants.” A visa applicant must prove to a consular officer that the “intended activities are consistent with the nonimmigrant status.” That includes showing that the applicant will leave the United States at the end of the activity.
The consular officer’s analysis then should focus on the “intended activities.” Most § 214(b) decisions are for B visas based on proposed trips of under six months. In such cases, the consular officer will often evaluate direct evidence of residence and ties abroad, including financial accounts, employment, family ties, property, etc.
However, for a J-1 visa holder, in particular a physician planning 3-7 years of graduate medical education (GME), the analysis should be different All physicians sponsored by ECFMG for participation in U.S. GME are automatically subject to a two-year home physical presence requirement. Additionally, due to the duration of U.S. training programs, the physician might not maintain a home overseas, but rather would stay with family or friends on short trips back to the home country. Physicians in training often have very little vacation time, and so would only be making short trips outside the United States. Moreover, a consular officer should not assume that the physician will be “swayed” to settle in the United States because of more “favorable conditions.”
The Rice memo is particularly important because discretionary relief for minor immigration mistakes (known as nunc pro tunc) duringextensions and changes of status requires compliance with the temporary intent requirement.
The FAM instructs consular officers to refer to the specific guidance for a visa type, rather than relying on the general language about INA § 214(b). We recommend that if the State Department revives the Rice cable for F-1s, it should also apply to J-1 exchange visitors.
About The Author
Dan Berger (dhb@curranberger.com) is a partner at the law firm of Curran & Berger in Northampton, MA, www.curranberger.com, and a frequent speaker, editor and writer on immigration issues at universities. Dan has also been editor for the American Immigration Lawyers Association (AILA) Immigration & Nationality Law Handbook since 2000, and edited Immigration Options for Academics and Researchers (2005 and 2011 editions), the International Adoption Sourcebook, and the Diplomatic Visa Guide. He is on the Editorial Board of Lexis/Nexis Law 360, an Honorary Member (and co-Chair of the International Committee) of the American Academy of Adoption Attorneys, and serves on the travel subcommittee of the National Association of Foreign Student Advisers.
Stephen Yale-Loehr (swy1@cornell.edu) is co-author of Immigration Law and Procedure, the leading immigration law treatise, published by LexisNexis. He also teaches immigration and asylum law at Cornell Law School, and is of counsel at Miller Mayer. He founded and was the first executive director of Invest in the USA, the trade association of EB-5 regional centers. He has testified several times before Congress, including a July 2009 U.S. Senate hearing about the EB-5 program.
Hyun Lee is a third-year law student at Cornell Law School. .
Emily Hindle is a graduate of Endicott College, where she completed a Bachelor’s degree in English. She also completed the paralegal program at Northeastern University. Emily specializes in employment-based immigrant and non-immigrant visas, achievement-based visas, and investor visas.