Foreign Affairs Manual “Immigrant Intent” Guidance Updated for F-1 Students

The Foreign Affairs Manual (“FAM”) provides guidance for visa issuance at U.S. Consulates and Embassies overseas. Under longstanding principles of U.S. immigration law, individuals applying for B-1/B-2 visitor or F-1/J-1/M-1 student or exchange visas must prove that they do not have immigrant intentions when applying for their visas. Such “single-intent” visas can be denied if the Consular Officer adjudicating the visa request is not convinced that the visa applicant has a residence in their home country to return to that they have no intent of abandoning.

Section 9 FAM 402.5-5(E)(1) of the Foreign Affairs Manual requires the visa applicant to prove that he or she:

(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.

Recently, the FAM was updated with several provisions. The revised FAM entries, effective August 8, 2017, make stricter 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.

Familiarity with the FAM verbiage is useful as it provides a good idea of relevant factors that the Consular Officer will consider.

The updated FAM entry references the standard nonimmigrant residence abroad FAM guidance at 9 FAM 401.1-3(F)(2). Individuals applying for single intent visas to the U.S. should bear in mind the following factors outlined in the FAM with respect to proving their residence abroad:

• The visa categories that are subject to residence abroad requirements are limited to: B, F, H (except H1), J, M, O2, P, and Q.
• One’s “residence is defined as the place of general abode of a person (his or her principal, actual dwelling place in fact, without regard to intent.)
• If the visa applicant usually resides in the household of another, that household is considered the “residence”
• “Strong ties” to one’s home country that must be proven to the Consular Officer can mean: permanent employment, meaningful business or financial connections, close family ties, or social or cultural associations, which indicate to the officer that the visa applicant has a compelling reason to return home.

Importantly, the FAM, at 9 FAM 401.1-3(F)(2)(d) further clarifies that the residence in a third country need not be the applicant’s former residence. For example, a Brazilian living in the U.K. for the past 3 years need not prove that he intends to return to the U.K., as long as he can prove that he intends return to their residence in Brazil after the studies are complete.

The FAM also includes important provisions which limit consular overreach by specifying that the mere possibility that a student visa applicant may, at some point in the future, apply to change or adjust reason should not in and of itself act as a basis for visa refusal as long as the visa applicant’s present intent is to depart at the conclusion of studies. 9 FAM 402.5-5(E)(1)(b).

An additional concern may arise for visa applicants who have an Immigrant visa petition pending. This presents a somewhat contradictory scenario: how does one prove their intent to return their home country when they have clearly already manifested intent to immigrate? This is clarified in 9 FAM 401.1-3(F)(2)(e) which explains that it is the intention of the visitor on the particular visit that is relevant. This section provides the following guidance to Consular Officers:

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 aliens 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 applicants true intent is to remain in the United States until such a time as an immigrant visa (IV) becomes available.

This final section is particularly useful to individuals going through the process of immigrating to the U.S. who simply want to make a temporary visit to the U.S. while the immigration process is ongoing. Such individuals have a higher burden to prove and must take additional precautions to demonstrate their ties to their home country. For example, a Vietnamese woman who has been petitioned by her U.S. citizen boyfriend who wants to make a visit to the U.S. before returning back to Vietnam to await her Immigrant Visa Interview at the Embassy; or an Indian EB-5 applicant whose I-526 immigrant investor petition has been approved, and is waiting for their Immigrant Visa to become available prior to immigrating to the U.S.