Permissible studies on the B visitor visa
Visitors often want to take a course or two while visiting. When they enroll, schools now and then erroneously enter them in SEVIS, which in turn results in an erroneous denial of a subsequent change of status applications. This guide is based on the successful motion to reopen one denied I-539.
Circumstances that led to denial of a change of status from the B2 visitor to F1 student.A foreign national entered as a B2 visitor and took English at the Arizona State University. He took one course. Arizona State University erroneously activated SEVIS student record.
I-539 Change of Status application and its initial denialThe part-time English student filed for change of his non-immigrant status from the B2 visitor to the F1 student. He got denied as follows, “The evidence contained within the record clearly demonstrated that the applicant enrolled in a course of study on January 21, 20##, therefore, in accordance with the provisions of 8 C.F.R. 214.2(b)(7), the applicant has violated his B2 nonimmigrant status. Therefore, the instant application is hereby denied.”
The denial was is erroneous ... and common.
Law - Incidental short course study is permissible on B-2 visaIncidental short course study is permissible to a foreigner visiting on B-2 visa. See 9 FAM 41.31 N.13-14 “B-2 Visitors for Pleasure. 1. Admissible if [9 FAM 41.31 N.13-14]: m. Language students in course of short duration when the course of study is under 18 hours per week. Cable, DOS, 93-State-202275 (July 2, 1993), reprinted in 70 No. 28 Interpreter Releases 978 (July 26, 1993)” (Ex. D); also see U.S. Department of State Foreign Affairs Manual Volume 9 – Visas 9 FAM 41.31 NOTES (CT:VISA-1365; 10-29-2009) (Office of Origin: CA/VO/L/R); 9 FAM 41.31 N13.6 Short Course of Study (CT:VISA-701; 02-15-2005) The following annotation is to be placed in the 88-character field of the visa for aliens coming to the United States primarily for tourism, who also incidentally will engage in a short course of study during their visit: STUDY INCIDENTAL TO VISIT—Form I-20 NOT REQUIRED.
The term “course of study” as appears in 8 C.F.R. 214.2(b)(7) is defined in the Service’s own HQINS 70/6.2.6 Memorandum For Regional Directors dated 8/7/02 as follows, “The term ‘course of study’ implies a focused program of classes leading to a degree or that teaches a potential vocation”. This definition should be determinative as to finding whether or not the Applicant enrolled in a course of study.
Argument that workedThe Applicant has never enrolled in a course of study. The Applicant, according to the Arizona State University, “has only engaged in incidental part-time study”. (Ex. A) Engagement in an incidental part-time study does not constitute enrolment in a course of study. The term “course of study” is defined in the Service’s own HQINS 70/6.2.6 Memorandum For Regional Directors dated 8/7/02 as follows, “The term ‘course of study’ implies a focused program of classes leading to a degree or that teaches a potential vocation”. (Ex. B) The Applicant took part-time English language courses. Such English part-time (under 18 hours per week) courses are neither “a focused program of classes leading to a degree”, nor “teach a potential vocation”. Accordingly, the provision of 8 C.F.R. 214.2(b)(7) is not applicable in the instant case. Arizona State University offers language study through the American English and Culture Program (AECP). The university’s policy is to only permit 18 hours part time study to foreigners on tourist visas. The university’s online FAQ states as follows in pertinent part, “Can I study at AECP with a tourist visa? Yes, but you will be able to take no more than 18 hours of classes per week. ” (Ex. C) The university’s policy is in compliance with the United States Government policy on short term language students expressed in the providing as follows, “B-2 Visitors for Pleasure. 1. Admissible if [9 FAM 41.31 N.13-14]: m. Language students in course of short duration when the course of study is under 18 hours per week. Cable, DOS, 93-State-202275 (July 2, 1993), reprinted in 70 No. 28 Interpreter Releases 978 (July 26, 1993)” (Ex. D) The Applicant was taking under 18 hours per week as incidental part-time study on the American English and Culture Program (AECP), which is in compliance with the current policy.
The Applicant, therefore was in compliance with the current laws and regulations. Denial of the instant application would lead to unconscionable results, as it would penalize a change of status seeker for engaging in the type of part-time study (language students in course of short duration under 18 hours per week) that is expressly permitted by the United States immigration laws and regulations, FAM and is clarified by the DOS cable. Furthermore, it would be unconscionable to penalize this change of status seeker for the action beyond his control for the school error, to which the school expressly admitted in writing. The school’s erroneous reporting to the SEVIS was beyond the Applicant’s control, and it was unbeknownst to the Applicant at time he made change of status application.
The package in support of the I-539 shows that the application is clearly approvable.
The Applicant’s I-539 application was denied based on the SEVIS error. The error has been discovered by the university and admitted. (See Ex. A) The Applicant is otherwise not in violation of his nonimmigrant B-2 status.