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IMMIGRATION JANUARY 07, 2022 | The Indian Eye 47

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ment for student applicants should this policy is discussed in our prior hoove the USCIS to also follow the guard against denials of change of
be considered in the context of the blog State Department Toughens State Department policy when one status applications is to recognize
usual limited ties that a student Standard for Assessing a Foreign applies for a change of status to F-1 that there is an inherent dual intent

would have, and their immediate in- Student’s Ties With Home Country. in the US. Nonimmigrant children in all nonimmigrant visas, including
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tent……… It was first articulated in 2005 after should not be penalized for not hav- F-1 and M-1 visas, as established in
While students may not be able student visa applications were being ing ties abroad as they have been Matter of Hosseinpour. In that case,
to demonstrate the same strong denied in the aftermath of the Sep- here for most of their lives and are the Board of Immigration Appeals
“ties,” present in other classes of tember 11 terrorist attacks. The new being forced to change to F-1or M-1 recognized in 1975 that the filing
applicants, their typical youth often policy that required examining a status just because their parents of an application for adjustment of
conveys a countervailing major ad- student’s nonimmigrant intent more could not timely receive a green status is not necessarily inconsistent
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vantage in establishing their bona leniently led to fewer student visa card due to the per country limits in with the maintenance of lawful non-
fides: they are not expected to, or refusals. The Trump administration the employment preferences. They immigrant status. Matter of Hos-
do not necessarily have a long-range guidance was more restrictive, but also are unable to claim the benefit seinpour is still good law.
plan, and may legitimately not be student visa applications were not of the Child Status Protection Act The Biden administration must
able to fully explain their plans at being wholesale rejected although due to erroneous USCIS policy of continue to use all possible tools
the conclusion of their studies. As students were more vulnerable to not allowing use of the Date for Fil- and resources to make life easier for
most students are relatively young rejections as consular officers could ing in the Visa Bulletin to freeze the nonimmigrants caught in the back-
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and many reside with parents or not rely on the same broad guidance age. The fact that they or their par- logs until Congress acts. Recogniz-
guardians, you can consider a stu- as before. Based on the reaffirma- ents have have sought permanent ing dual intent in nonimmigrant vi-
dent to be maintaining a residence tion of the relaxed guidance on De- residence should not be held against sas would help in ameliorating the
abroad if he or she intends to return cember 20, 2021, students applying them when they apply for change of plight of aged out children desiring

to reside with parents or guardians. for F or M visas should not be de- status from H-4 to F-1 in the US. to remain in nonimmigrant status in
Nonetheless, you must be satisfied nied just because they do not have The best way for the USCIS to safe- the US.
at the time of application for a visa strong ties with the home country, ____________________________________________________________________________
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that the visa applicant possesses the and even though the student must Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Man-
present intent to depart the United still demonstrate a present intent aging Partner of Cyrus D. Mehta & Partners PLLC in New York City. Mr. Mehta is a member
States at the conclusion of his or her to depart the US, if this intention is of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Committee; former chair of
approved activities. That this in- subject to change or even likely to AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Dis-
tention is subject to change or even change in the future is not reason ciplinary Committee, Appellate Division, First Department, New York; member of the ABA
likely to change is not a sufficient enough to refuse the visa. Commission on Immigration; board member of Volunteers for Legal Services and board
reason to deny a visa. Further, the Notwithstanding the change member of New York Immigration Coalition. Mr. Mehta is the former chair of the Board of
present intent to depart, does not in State Department policy as ex- Trustees of the American Immigration Council and former chair of the Committee on Immi-
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infer the need to return to the coun- pressed in the FAM, the USCIS gration and Nationality Law of the New York City Bar Association. He is a frequent speaker
try from which they hold a passport. is unfortunately not bound by the and writer on various immigration-related issues, including on ethics, and is also an adjunct

It means only that they must intend FAM. Many children of parents professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and
to leave the United States upon caught in the employment-based Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing
completion of studies. second and third preference back- the practice of immigration law and the AILA 2011 Michael Maggio Memorial Award for his
This was the prior policy of the logs who are aging out are forced to outstanding efforts in providing pro bono representation in the immigration field. He has also
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State Department from 2005 until it change status from H-4 to F-1, and received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked
was modified by the Trump admin- they too should also be able to ben- among the most highly regarded lawyers in North America by Who’s Who Legal – Corporate
istration in 2017, and the history of efit from this guidance. It would be- Immigration Law 2019 and is also ranked in Chambers USA and Chambers Global 2019 in
immigration law, among other rankings.

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