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IMMIGRATION JANUARY 26, 2024 | The Indian Eye 44
USCIS Policy Manual Recognizes
Dual Intent for Foreign Students as
Expressed in Matter of Hosseinpour
BY CYRUS D. MEHTA AND to INA 101(a)(15)(F) and stays in the United States. conclusion of their studies. the conclusion of their stud-
INA 101(a)(15)(M), foreign […] Considerations should The fact that this intention ies. You must be satisfied at
KAITLYN BOX*
students in F and M status include the student’s present may change is not a sufficient the time of the application
must “intend to depart from intent, not what they might reason to deny them F classi- for the visa that the applicant
n December 20, 2023, the United States after their do after a lengthy stay in the fication. In addition, the pres- possesses the present intent
U.S. Citizenship and
OImmigration Services temporary period of stay … United States”. Newly added ent intent to depart does not to depart at the conclusion of
imply the need to return to their approved activities.
and have a foreign residence language in the Policy Man-
(USCIS) issued updated pol- that they have no intention of ual also makes clear that a the country from which they
icy guidance in the USCIS abandoning”. foreign student who is the hold a passport. It means only 9 FAM 402.5-5(E)(1)(U)(c)
Policy Manual pertaining to The USCIS Policy Man- beneficiary of a labor certifi- that they must intend to leave he new guidance is
nonimmigrant students in F ual acknowledges that “The cation or I-140 petition filed the United States upon com- also in line with the
and M status. An F-1 visa al- foreign residence require- by a prospective employer pletion of their studies. Given TBoard of Immigration
lows a nonimmigrant student ment should be adjudicated can still demonstrate the that most students are young, Appeals’ (BIA) decision in
to enter the U.S. to student at differently for students than requisite intent to depart the they are not expected to have Matter of Hosseinpour, 15
a college or university, while for other nonimmigrants. United States, stating: “A stu- a long-range plan and may I&N Dec. 191 (B.I.A. 1975),
nonimmigrants in M status Typically, students lack the dent may be the beneficiary not be able to fully explain which recognized inherent
pursue training at a voca- strong economic and social of an approved or pending their plans at the conclusion dual intent in nonimmigrant
tional school or other nonac- ties of more established ap- permanent labor certifica- of their studies.” visas. Matter of Hosseinpour
ademic institution. Pursuant
plicants, and they plan longer tion application or immigrant This update to the Pol- involved an Iranian citizen
petition and still be able icy Manual is not only a wel- who entered the U.S. as a
to demonstrate their in- come clarification for foreign nonimmigrant student and
tention to depart after a students, but it also brings later applied for adjustment
temporary period of stay. USCIS policy in line with of status. After his adjustment
USCIS officers generally consular guidance and estab- of status application was de-
view the fact that a stu- lished case law. Section 402.5- nied, he was placed in depor-
dent is the beneficiary of 5(E)(1)(U) of the Foreign tation proceedings and found
an approved or pending Affairs Manual, for example, deportable by an immigration
permanent labor certifi- instructs consular officers as judge on the ground that he
cation or an immigrant follows: violated his nonimmigrant
visa petition as not nec- If a student visa applicant status by filing an adjustment
essarily impacting their is residing with parents or of status application. The BIA
eligibility for the classi- guardians, you may consider disagreed with this interpreta-
fication, so long as the them to be maintaining a res- tion of the nonimmigrant in-
student intends to depart idence abroad if you are satis- tent requirement for foreign
at the end of their tem- fied that the applicant has the students, noting the amend-
porary period of stay.” present intent to depart the ments to the Immigration and
A further addition to the United States at the conclu- Nationality Act had expressly
Policy Manual broadens sion of their studies. The fact removed a provision stating
the requirement that for- that this intention may change that an individual’s nonimmi-
eign students must main- is not sufficient reason to deny grant status would automat-
tain a residence abroad: a visa. In addition, the pres- ically terminate if he filed an
m of “If a student had ent intent to depart, does not adjustment of status applica-
CYRUS D. MEHTA & PARTNERS PLLC a foreign residence imply the need to return to tion. Thus, the BIA held that
immediately prior to the country from which they “filing of an application for ad-
traveling to the Unit- hold a passport. It means only justment of status is not nec-
ed States, even if such that they must intend to leave essarily inconsistent with the
residence was with par- the United States upon com- maintenance of lawful nonim-
ents or guardians, they pletion of their studies. Given migrant status”. The BIA also
may be considered to be that most student visa appli- referred to legal precedent
maintaining a residence cants are young, they are not which states that “a desire to
abroad if they have the expected to have a long-range remain in this country perma-
present intent to depart plan and may not be able to nently in accordance with the
2 6th Floor
the United States at the fully explain their plans at law, should the opportunity to
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