On December 20, 2021, the Department of State (DOS) updated the Foreign Affairs Manual (FAM) used by consular officers, to restore helpful distinctions to the residence abroad requirement for F students. Restoration of this guidance was one of NAFSA's specific recommendations to DOS.

Here is the new language of the 9 FAM provision, in paragraphs b and c.

9 FAM 402.5-5(E)(1)  (U) Residence Abroad Required

(CT:VISA-1439;   12-20-2021)

a. (U) INA 101(a)(15)(F)(i) and INA 101(a)(15)(M)(i) require that an F-1 or M-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)  (U) Has a residence abroad;

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

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

b. (U) 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 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, 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 their plans for the future.  Student visa adjudication is made more complex by the fact that students typically are expected to stay in the United States longer than do many other nonimmigrant visitors, to complete their program of studies.  In these circumstances, it is important to keep in mind that the applicant’s intent is to be adjudicated based on present intent - not on contingencies of what might happen in the future, after a lengthy period of study in the United States.  Therefore, the residence abroad requirement for student applicants should be considered in the context of the usual limited ties that a student would have, and their immediate intent.

c. (U) While students may not be able to demonstrate the same strong "ties," present in other classes of applicants, their typical youth often conveys a countervailing major advantage in establishing their bona fides: they are not expected to, or do not necessarily have a long-range plan, and may legitimately not be able to fully explain their plans at the conclusion of their studies.  As most students are relatively young and many reside with parents or guardians, you can consider a student to be maintaining a residence abroad if he or she intends to return to reside with parents or guardians.  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 or even likely to change is not a sufficient reason to deny a visa.  Further, the present intent to depart, does not infer the need to return to the country from which they hold a passport.  It means only that they must intend to leave the United States upon completion of studies.

The prior 2017 language

This replaces the prior language of that provision, which since 2017 had read:

...

b. (U) 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. 

NAFSA's recommendation to DOS

Here is NAFSA's recommendation to the Department of State, one of several that NAFSA made to the agency at the beginning of the Biden administration:

  • Restore F-1 Residence Abroad Language to the Foreign Affairs Manual (FAM).

On August 8, 2017, DOS updated its FAM guidance on residence abroad for F-1 students, removing well-crafted language that instructed consular officers to consider the "inherent difference" between a young F-1 visa applicant and a short-term B visa applicant. The current 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. DOS should restore the following language to the FAM:

b. (U) 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. (U) 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.