Practice AdvisoryWhile the USCIS guidance is basically consistent with prior guidance on students who wish to enroll in a full course of study and need a change of status to F-1 to do so, there are several issues in the new guidance that may be confusing:
- First, the USCIS guidance uses the term "enroll in classes" rather than the regulatory term "enroll in a course of study” found at 8 C.F.R. § 214.2(b)(7) and 8 C.F.R. § 248.1(c)(3), and so the language in the USCIS memo makes the restriction seem much broader. A 2002 INS memo had defined course of study as follows: "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."
- Second, the incidental study guidance on the DOS Web site states that: "If you are going to the U.S. primarily for tourism, but want to take a short course of study which is recreational, and the course is less than 18 hours per week, you may be able to do so on a visitor visa. If your course of study is 18 hours or more a week, you will need a student visa. When traveling to the U.S. to attend seminars or conferences for credit towards a degree, then you'll need a student visa." DHS and DOS need to integrate their guidance on this topic.
In an August 26, 2010 meeting, NAFSA brought the above issues to the attention of USCIS. USCIS stated that the memo was not designed to create new policy, but was rather issued in response to their receiving an increasing number of applications for change of status from B to F-1 status, where the applicant had already begun the course of study on which the change of status application was based. USCIS said they would examine the points that NAFSA raised as to the wording of their instruction notice. USCIS also mentioned they had already been conversing with the Department of State and the Student and Exchange Visitor Program on the question of incidental study in B status, even before this guidance was published.