Stricter F-1 Residence Abroad Language in FAM

September 12, 2017

 

On August 8, 2017, DOS revised its FAM guidance on assessing residence abroad for F-1 students, by removing helpful prior language that had encouraged consular officers to consider the "inherent difference" between a young F-1 visa applicant and a short-term B visa applicant. The new FAM entry now applies the standard nonimmigrant residence abroad FAM entry of 9 FAM 401.1-3(F)(2) to F-1 students as well.

Compare the following language from the prior version of 9 FAM 402.5-5(E)-(1) with the language effective August 8, 2017.

Prior FAM Guidance

NOTE - The prior policy guidance had been in place in one form or another since at least 2005. It was superseded by DOS FAM updates effective August 8, 2017, and is provided for background purposes.

9 FAM 402.5-5(E)(1) Residence Abroad Required (CT:VISA-354; 04-26-2017)

a. The INA requires that the applicant possess a residence in a foreign country he or she has no intention of abandoning. The regulations require that you are satisfied that the visa applicant intends to depart upon completion of the approved activity. Consequently, you must be satisfied that the applicant, at the time of visa application:

(1) Has a residence abroad;

(2) Has no immediate intention of abandoning that residence; and

(3) Intends to depart from the United States upon completion of approved activities.

b. The context of the residence abroad requirement for student visas inherently differs from the context for B visitor visas or other short-term visas (See 9 FAM 401.1-3(F)(2)). The statute clearly presupposes 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 young, single, unemployed, without property, and is at the stage in life of deciding and developing his or her future plans. Student visa adjudication is made more complex by the fact that students typically stay in the United States longer than do many other nonimmigrant visitors.

c. The residence abroad requirement for a student should therefore not be exclusively connected to "ties." You must focus on the student applicant's immediate intent, rather than trying to predict what the student may or may not do following completion of studies. Another aspect to consider: students' typical youth often means they do not necessarily have a long-range plan, and hence are relatively less likely to have formed an intent to abandon their homes. Nonetheless, you must be satisfied at the time of application for a visa that the visa applicant possesses the present intent to depart the United States at the conclusion of his or her approved activities. That this intention is subject to change is not a sufficient reason to refuse a visa. Although students may apply to change or adjust status in the United States in the future, this is not a basis to refuse a visa application if the student's present intent is to depart at the conclusion of his or her studies.

Revised FAM Guidance Effective August 8, 2017

Here is the revised version:

9 FAM 402.5-5(E)(1) - Residence Abroad Required (CT:VISA-432; 08-08-2017)

a. INA 101(a)(15)(F)(i) requires that an F-1 applicant possess a residence in a foreign country he or she has no intention of abandoning. You must be satisfied that the applicant intends to depart upon completion of the approved activity. Consequently, you must be satisfied that the applicant, at the time of visa application:

(1) Has a residence abroad;

(2) Has no immediate intention of abandoning that residence; and

(3) Intends to depart from the United States upon completion of approved activities.

b. Examining Residence Abroad: General rules for examining residence abroad are outlined in 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.

This revised FAM entry now points to the standard nonimmigrant residence abroad FAM guidance at 9 FAM 401.1-3(F)(2), which reads:

9 FAM 401.1-3(F)(2) Residence Abroad Defined (CT:VISA-225;  10-20-2016)

a. The term "residence" is defined in INA 101(a)(33) as the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.  This does not mean that an alien must maintain an independent household in order to qualify as an alien who has a residence in a foreign country and has no intention of abandoning.  If the alien customarily resides in the household of another, that household is the residence in fact.  NOTE:  Only the following visa categories are subject to residence abroad requirements:  B, F, H (except H1), J, M, O2, P, and Q.  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.

b. The applicant must demonstrate permanent employment, meaningful business or financial connections, close family ties, or social or cultural associations, which will indicate a strong inducement to return to the country of origin.

c.  The residence in a foreign country need not be the alien's former residence.  For example, an alien who has been living in Germany may meet the residence abroad requirement by showing a clear intention to establish a residence in Canada after a temporary visit in the United States.

d. Suspicion that an alien, after admission, may be swayed to remain in the United States because of more favorable living conditions is not a sufficient ground to refuse a visa as long as the alien's current intent is to return to a foreign residence.

e. You may properly issue visitor visas to aliens with immigrant visa (IV) applications pending with the United States Citizenship and Immigration Services (USCIS).  You must be satisfied that the alien's intent in seeking entry into the United States is to engage in activities consistent with B1/B2 classification for a temporary period and that the alien has a residence abroad which he or she does not intend to abandon.  While immigrant visa registration is reflective of an intent to immigrate, it may not be proper for you to refuse issuance of a visa under INA 214(b) solely on the basis of such registration, unless you have reason to believe the applicant's true intent is to remain in the United States until such a time as an immigrant visa (IV) becomes available.