In the United States, Congress and government agencies must follow a set of rules for making laws and for promulgating regulations to implement those laws.

On 12 April 2002 the DHS published two new rules. One is published as "interim" meaning that it is in effect immediately as a temporary measure. Members of the public who wish to may write to the INS and comment on how they think the rule should be changed in the future. The other rule is "proposed" meaning that DHS is thinking about making this rule, but will wait for the public to comment before it decides. It will consider the public comments before publishing a "final" effective rule.

As you read this FAQ pay close attention to whether the discussion relates to the "interim" rule or the "proposed" rule.

First let us understand whom the rule affects. It changes only the procedures and options for those persons admitted to the U.S. in B-1 visitor for business or B-2 visitor for pleasure category or those who change to those categories after arrival.

The new interim rule makes it a violation of B visitor status to enroll in a course of study while in that status. If someone enters as or changes status to B and wishes to attend school, he/she must file for a change to student status and wait for that status to be approved before beginning school. Alternately the person could leave the U.S., thus ending the B status, apply for an appropriate student visa abroad, and return in proper student status.

The new rule does not affect persons inside or entering the U.S. in other nonimmigrant categories such as F-1, M-1, J-1, H-1B, O-1 and so on; nor does it affect some of their dependent families in M-2, J-2, H-4, O-3, etc. categories. Those persons can continue to enroll in and attend school provided they do all that is required to maintain their legal status. Examples: a J-2 dependent can attend school provided the J-1 maintains status and the J-2 does not work illegally or otherwise violate status; an H-1B can attend school provided he/she continues to meet fully the requirements of the H-1B, which include doing the work for which the H-1B was issued and refraining from unauthorized work or other violations.

HOWEVER, effective January 1, 2003, F-2 spouses or children above high-school age are no longer permitted to enroll as full-time students. F-2 dependents are permitted to engage only in part time "avocational or recreational" study. This is defined as: "Study to pursue a hobby or study that is of an occasional, casual, or recreational nature."

In addition to publishing the rule in the Federal Register, the DHS sent a guidance memorandum to its field offices to clarify how the rule should be interpreted and applied in regard to the definition of "course of study." The DHS guidance memorandum states, in part,

". . .The term ‘course of study’ implies a focused program of classes, such as a full-time course load leading to a degree or in the case of a vocational student, some type of certification. Casual, short-term classes that are not the primary purpose of the alien’s presence in the United States, such as a single English language or crafts class, would not constitute a ‘course of study.’ Courses with more substance or that teach a potential vocation, such as flight training, would be considered part of a ‘course of study’ and thus would require approval of student status; . . ."

This memorandum clarifies that the rule applies primarily to those kinds of enrollment that would normally be full-time and would normally be undertaken in F-1, M-1, or J-1 status. It is unlikely that the dive shop at the beach would have F, M, or J issuing authority, and the classes are short, focused, and related to a usual tourist activity. Under the current student rules, those classes would generally not qualify one for F, M, or J status. Such classes would be allowed on the B-1 or B-2. On the other hand, coming to the U.S. to enroll full-time in a Duke summer school program would be full-time academic enrollment and would not be appropriate for someone in B-1 or B-2 status under this rule. Participants in full-time or substantial academic programs would have to file for change of status and wait for that status to be approved before beginning school.

If you have friends or family visiting who might intend to take some classes, be sure to plan ahead. Check with the school or organization that is offering the classes to determine the kind of study, whether the classes would be considered a "course of study" under the new rules, and whether the school can issue documents for F-1, M-1, or J-1 status. Then be sure that your friend or family member enters the U.S. in the proper student status if the kind of study requires it.

The interim rule contains a "grandfather" provision. This term is used to describe special language or provisions for those already in a particular situation at the time a new law or regulation becomes effective. In this rule, those who entered the U.S. in B status and applied for change to student status prior to 12 April 2002, the date of publication of the rule, will be treated as they would have been under the old rules. They may enroll in school while their changes of status are pending; they do not have to wait for DHS approval before beginning a course of study.

Anyone who entered the U.S. in B status or changed to B status on or after 12 April 2002 and who then applies for change of status to student must wait for DHS to approve the change of status before beginning a course of study.

There is a small group of people who entered in B status prior to 12 April 2002, but waited until after 12 April 2002 to file for the change of status to student. It appears from the language in the new rule that they may continue to attend school while they wait for approval of the change of status, but DHS has given some slightly different guidance to its field officers. DHS officers may need additional information and may need to consult DHS headquarters on how to process these "transition" cases.

Remember that DHS published two separate rules. We have just discussed the interim rule that is effective now.

All of the other restrictions are "proposed." DHS is thinking about imposing those new rules, but they are not, repeat not, effective at this time. You may go to the Federal Register web site (see instructions above) to read the entire rule. We will deal only generally with the proposed rules so that you have an idea of what to look for as your read. We will not discuss these in detail because they are not yet "real" and they could change significantly before they become "final" effective rules. Note that, as is the custom with proposed rules, DHS has set a deadline for comments. The comment period for this proposed rule ends on 13 May 2002, and then DHS has to read and consider all the comments. It will probably be late June, at the earliest, before the rule becomes final and effective.

Read the rule carefully. It does not say that everyone is limited to 30 days. Currently the "default" length of admission for visitors is 6 months unless the Bureau of Customs and Border Protection (BCBP) officer believes that a shorter time is more appropriate. This extended stay procedure has been easier for U.S. officials and for international travelers. For security reasons a proposal was made to change the default to 30 days, but will still allow the BCBP officer at the port of entry to approve up to 6 months for initial admission if there is a good reason to do so. For example, if your parents are coming for your graduation and will stay to help you move your things, or travel to tourist sites, or visit their own colleagues and family in the U.S., then BCBP can admit them for an extended period to do all of that. BCBP will just need some kind of evidence that all of this activity is planned.

Remember, this is a proposed rule. It is not yet real. The current admission rules still apply.

In this proposed rule, DHS is trying to ensure that people are coming to and remaining in the U.S. for stated and acceptable purposes and activities. They do not want to have people given admissions or extensions of stay for long periods of time "just to hang out." The visitor visa is for visiting, not for living in the U.S. part-time. DHS is suggesting exceptions for emergency or medical reasons or for those persons who own homes in the U.S. and who spend extended periods here for their vacations, or for those who have business reasons for longer stays.

Remember this is a proposed rule. It is not yet real. The current extension rules still apply.

DHS is proposing that people who enter as visitors not be allowed to change to student status, unless they declare at the port of entry that it is their intention to attend school later in their visit.

It has been common for people whose primary plan is to attend school to use the visitor visa to enter the U.S. by "pretending" that they were coming only to visit, when their real intention was to attend school. They believed that it was easier to get the visitor visa or feared that the student visa might be denied. So, in a word, they lied about their plans to the consular officer and to the officer at the port of entry. At its very base, this kind of misrepresentation is fraud.

The DHS proposed rule would make people live by their word. If a person says, "I am coming to visit," then he/she may do so, but may not change to student status later. If a person is really coming to look at schools or to make decisions about which school to attend, then he/she must be honest and say so at the port of entry. The BCBP officer will make a notation in the immigration records that the person entered as a "prospective student." That notation will permit a CIS officer at a CIS service center to change the person’s status later from visitor to student. Without that notation in the file, the CIS officer will not be permitted to change the status from visitor to student. To obtain student status the person would have to leave the U.S., get a proper student visa, and return in proper student status.

Remember, this is a proposed rule. It is not yet real.

It is true that when DHS publishes a "proposed rule" it has already considered many options and believes that it has reached the best solution. However, the comment period is truly meant to give the public time to tell DHS where its facts or reasoning may be faulty or how it could reach its goal in a more positive and less disruptive way.

The educational community is already looking at ways that it may wish to respond to the rule.

Examples of changes we might want to see:

• It will take a long time to get the word out around the world about the prospective student notation. Perhaps DHS could publish the final rule with a delayed effective date, so that people have a reasonable time to adjust.
• If DHS insists on the 30-day default for admission, perhaps it could publish guidelines on the kinds of evidence one might offer to get a longer admission from the beginning so that those with extended plans can enter to enjoy a long visit with friends and family, and purchase their airline tickets appropriately.
• If DHS insists on limiting extensions, perhaps it could include unexpected opportunities to attend conferences, or give lectures, or participate in group travel as reasons for extension.

Certainly anyone planning to travel to the U.S. in B visitor status this summer should be aware that the rules might change, and should consider ways to be ready for those changes. Those who need extended time in the U.S. may want to have a written itinerary with them or have invitations, with dates, to visit relative, friends, and colleagues. Those who plan to attend school should make every effort to get all of the paperwork and visa documentation in order so that they enter in proper student status. They should not depend on getting a quick B entry with a later change to student status.

Publication of a document in the Federal Register is meant to be a very public act. The purpose of the publication is to place the issue before everyone in the country who cares to read and respond. When you respond no one asks, "are you a citizen?" or "what is your home country?" The responses go to a specified address, and by law, DHS must read each and every one and give it due consideration. However, respondents will disagree. You may say, "I hate (or love) this idea," and someone else will write in with the opposite opinion.

No government agency, and certainly not DHS, is likely to be swayed by emotional arguments that visa and status restrictions somehow deny you your "right" to enter or remain in the U.S. Aliens do not have the right to enter the U.S. (See " Constitutional Rights"

DHS is more likely to respond to logical arguments about issues that it has not yet considered. For example, you might argue in your comment, that you have spent 4, 6, 8 (whatever) years studying in the U.S. You have learned a lot about the country. Your parents are visiting and this is a special chance for you to spend extended time with them sharing what you have learned and traveling to all those places you have written to them about. You will need more than 30 days to do that. Similarly, you might argue that as a married graduate student, you and your spouse are expecting or have just had your first baby. As is true with many young couples, including American families, parents come to help out during this time of transition and will need more than 30 days.

Understand the context of the proposed rule and make your comments work within it. Can you logically argue that a person should be allowed to come into the U.S. for six months and just roam around? Other commentors may argue that aliens will use that time to plan another terrorist attack? Can you give INS many examples of why people would reasonably and logically need more than 30 days? Of course you can.

Keep in mind also that writing in is not voting. DHS does not count the pros and cons and go with the majority. Instead it considers the arguments and weighs those against the law that it is required to uphold, and tries to determine the best way to meet the letter and the spirit of the law. DHS must always make its regulations within the law for the purpose of upholding the law.

The Visa Services will be watching the development of this rule and will let you know via our web page and INTLFLASH when there is a final rule.

Contact Visa Services by sending a message to VISAHELP@mc.duke.edu or call the office at 681-8472.