Research Directorate, Immigration and Refugee Board of Canada, Ottawa

1. Student Visas

Foreign students planning to attend an academic institution, such as a university, college, high school, private elementary school, seminary, conservatory, or language program, require an F-category visa to study in the US (US n.d.a). Foreign students planning to attend a vocational school, or other non-academic institution, require an M-category visa (ibid.).

According to the US Department of State, the first step to receiving a student visa is acceptance at a school that is certified by the Student and Exchange Visitor Program (SEVP) (ibid.), which"collects, maintains, analyzes, and provides information" to ensure that "only legitimate foreign students or exchange visitors gain entry to the United States" (ibid. n.d.c). Under the auspices of the Department of Homeland Security, the SEVP "manages" schools and students in the F and M visa categories, as well as their dependents (ibid.).

The SEVP maintains an Internet-based system known as the Student and Exchange Visitor Information System (SEVIS) that keeps up-to-date information on F- and M-category students and J-category exchange visitors, as well as their dependents (ibid. n.d.a). Foreign students applying for a student visa are required to submit a SEVIS-generated I-20 form issued by an approved educational institution (ibid.). The school is required to enter the student's information for the I-20 visa form into SEVIS (ibid.). When processing the visa application, a consular official confirms the I-20 record in the electronic SEVIS system (ibid.).

With "few exceptions," student visa applicants between the ages of 14 and 79 are required to have an interview at a consulate (ibid.). A digital fingerprint scan is also taken at some point during the application process, usually when the applicant has the interview (ibid.).

The State Department cautions that a visa "does not guarantee entry into the United States" (US n.d.a). Rather, US Customs and Border Protection (CBP) officials have the power to grant or deny entry to the country (ibid.). A CBP official is also the one who determines the length of a foreign student's visit on the Arrival-Departure Record (Form I-94) (ibid.). Visas are valid until their expiration date, even if the passport expires, although a new passport is required for admission to the US (ibid.).

1.1 Requirements for Student Visa

According to the US State Department, to qualify for a student visa, applicants must show that they

• [h]ave a residence abroad, with no immediate intention of abandoning that residence;
• [i]ntend to depart from the United States upon completion of the course of study; and
• [p]ossess sufficient funds to pursue the proposed course of study. (n.d.a)

Student visa applicants must also submit the following forms and documents:

• Form I-20A-B, Certificate of Eligibility for Nonimmigrant (F-1) Student Status-For Academic and Language Students or Form I-20M-N, Certificate of Eligibility for Nonimmigrant (M-1) Student Status for Vocational Students. …
• Online Nonimmigrant Visa Electronic Application, Form DS-160. …
• A passport ….
• One (1) 2x2 photograph. …
• A MRV [machine readable visa] fee receipt to show payment of the visa application fee.
• The SEVIS I-901 fee receipts. (US n.d.a)

Applicants are advised to be prepared to provide other supporting documents such as academic transcripts and diplomas, scores from standardized tests, and "financial evidence" to show that the applicant or the applicant's parents have sufficient funds to finance the applicant's studies and living expenses (ibid.). Financial evidence might include tax documents, bank statements or business-related documents (ibid.).

2. Exchange Visitor Visas

Exchange visitor (J-category) visas are for people participating in a SEVP-certified exchange visitor program to the US (US n.d.b). The exchange visitor categories are au pair and EduCare; camp counsellor; government visitor; intern; international visitor to the State Department; physician; professor and research scholar; short-term scholar; specialist; college, university and secondary student; summer work travel; teacher; and trainees (ibid.).

After being accepted into one of the exchange visitor program categories through an approved sponsoring organization, the applicant is given the documents needed to apply for a J visa by his or her sponsor (ibid.). Information about exchange visitors, their dependents, and program sponsors is kept on SEVIS (ibid.). Exchange visitor applicants must submit a DS-2019 form generated by SEVIS and issued by a sponsor that has been approved by the Department of State; the DS-2019 record is then verified by a consular officer electronically during the visa issuance process (ibid.).

To qualify for the exchange visitor visa, the US Department of State indicates that applicants must show

• [t]hat they plan to remain in the U.S. for a temporary, specific, limited period;
• [e]vidence of funds to cover expenses in the U.S.;
• [e]vidence of compelling social and economic ties abroad; and other binding ties which will insure their return abroad at the end of the visit. (US n.d.b)

Exchange visitor visa applicants must submit the following documents:

• DS 2019, Certificate of Eligibility for Exchange Visitor Status. …
• A Training/Internship Placement Plan, Form DS-7002 [for trainees or interns]. …
• Online Nonimmigrant Visa Electronic Application, Form DS-160. …
• A passport valid for travel to the U.S. and with a validity date at least six months beyond the applicant's intended period of stay in the U.S. …
• One (1) 2x2 photograph. (ibid.)

In addition, there are fees for processing the visa application as well as for issuing the visa, and the applicant may need to provide additional documents (US n.d.b). As the State Department explains,

[a]pplicants must demonstrate to the consular officer that they have binding ties to a residence in a foreign country which they have no intention of abandoning, and that they are coming to the U.S. for a temporary period. It is impossible to specify the exact form the evidence should take since applicants' circumstances vary greatly. (ibid.)

Just as with a student visa, an exchange visitor visa "does not guarantee entry into the United States" (US n.d.b). Rather, US customs and border officials have the power to grant or deny entry to the country and determine the length of the exchange visitor's visit (ibid.). Holders of exchange visitor visas are required to enter the US no more than 30 days before the start of their program (ibid.). To enter the US earlier, the person would be required to get a visitor (B-category) visa, but the State Department indicates that this is "strongly discouraged" (ibid.).

2.1 Two-Year Home-Country Physical Presence Requirement

The US State Department indicates that participants in certain exchange visitor programs are required to return to their home country for a minimum of two years at the end of their programs (US n.d.b). These programs include government-funded exchange programs (either funded by the US or the applicant's government), graduate medical education or training, or Exchange Visitor Skills List programs (ibid.). Unless they return to their home country for the required two years or the requirement is waived, participants in these programs are not allowed to change their status to "H, L, K, or immigrant lawful permanent resident" (ibid.).

The State Department notes that participants might be able to receive a waiver from the two-year requirement under one of the following categories:

• No Objection Statement;
• Exceptional Hardship;
• Persecution;
• Conrad Program; or
• Interested Government Agency. (ibid.)

3. Restrictions on Claiming Refugee Protection
3.1 Individuals with Student or Exchange Visitor Visas

In correspondence with the Research Directorate, an asylum operations program manager at the US Citizenship and Immigration Services (USCIS) indicated that there are no restrictions that would prevent someone who holds either a student visa (F category or M category) or an exchange visitor visa (J category) from seeking refugee protection in the US (20 Mar. 2012). She stated that

[s]ubject to certain bars to applying for or being granted asylum, any individual who is physically present in the United States or who arrives in the United States irrespective of status (whether in the United States legally or illegally) may request protection. (US 20 Mar. 2012)

This information was corroborated by several attorneys who work for NGOs that provide assistance to asylum seekers (Heartland Alliance 21 Mar. 2012; American Gateways 8 Mar. 2012; Freedom House Detroit 9 Mar. 2012). Sources also agree that there is no country from which an individual on a student or an exchange visitor visa originates that would be a barrier to seeking asylum (ibid.; US 20 Mar. 2012; Heartland Alliance 21 Mar. 2012). More specifically, the USCIS website says: "You may apply for asylum regardless of your immigration status, whether you are here legally or illegally" (US n.d.d).

3.2 General Restrictions

According to the USCIS, applicants who previously applied for and were denied asylum are barred from applying again unless they can show that "changed circumstances … materially affect" their eligibility (ibid.). Also, applicants who can be removed to Canada under the Safe Third Country Agreement are barred from applying for asylum defensively (ibid.), which is when asylum is requested as a "defence against removal from the US" during proceedings in immigration court with the Executive Office for Immigration Review (US n.d.f).

The USCIS website provides the following explanation about how and when to apply for asylum in the US:

You may only apply for asylum if you are arriving in or already physically present in the United States. To apply for asylum in the United States, you may ask for asylum at a port-of-entry (airport, seaport, or border crossing), or, if you are already in the United States, you may file Form I-589, Application for Asylum and for Withholding of Removal, at the appropriate Service Center. …

You must apply for asylum within one year of your last arrival in the United States, unless you can demonstrate that there are changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances directly related to your failure to file within one year. You must apply for asylum within a reasonable time given the circumstances. Changed or extraordinary circumstances may include certain changes in the conditions in your country, changes in your own circumstances, and other events. (US n.d.d)

The USCIS indicates that applicants can be denied asylum if authorities find that they

• [o]rdered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion;
• [w]ere convicted of a “particularly serious crime” such that you are a danger to the United States;
• [c]ommitted a “serious nonpolitical crime” outside the United States;
• [p]ose a danger to the security of the United States; [or]
• [h]ave been firmly resettled in another country before arriving in the United States. (US n.d.e)

In addition, the USCIS notes that applicants are inadmissible for asylum if they

• [h]ave engaged in terrorist activity·
• [a]re engaged in or are likely to engage after entry in any terrorist activity·
• [h]ave incited terrorist activity
• [a]re a representative of a foreign terrorist organization
• [a]re a member of a terrorist organization
• [h]ave persuaded others to support terrorist activity or a terrorist organization
• [h]ave received military-type training from or on behalf of any organization that, at the time the training was received, was a terrorist organization
• [a]re the spouse or child of an individual who is inadmissible for any of the above within the last 5 years (ibid.)

Asked whether US authorities ever require visa applicants to sign an agreement promising not to claim asylum, the USCIS program manager and the NGO attorneys consulted by the Research Directorate all said they were not aware of any instances in which this happened (US 20 Mar. 2012; American Gateways 8 Mar. 2012; Freedom House Detroit 9 Mar. 2012; Heartland Alliance 21 Mar. 2012). The USCIS program manager went on to explain that, even if the asylum seeker had signed an agreement promising not to claim asylum, it would not prevent the person "from applying for or being eligible for asylum" (US 20 Mar. 2012). The attorney for the Austin-based NGO American Gateways, a legal service for immigrants who cannot afford a lawyer (American Gateways n.d.), also reasoned that such an agreement would not disqualify someone from claiming asylum, particularly if their circumstances changed from the time that they signed the agreement (ibid. 8 Mar. 2012). She also noted that, if granted asylum, someone with an exchange visitor visa who has a two-year home-country requirement would not have to return to the home country or go through the procedure to get the restriction waived (ibid.).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

American Gateways. 8 March 2012. Telephone interview with the General Counsel.

_____. N.d. "The American Gateways Story." <http://www.americangateways.org/the-american-gateways-story/> [Accessed 28 Mar. 2012]

Freedom House Detroit. 9 March 2012. Correspondence from a senior attorney to the Research Directorate.

Heartland Alliance National Immigrant Justice Center (NIJC). 21 March 2012. Correspondence from a supervising attorney of the Asylum Project to the Research Directorate.

United States (US). 20 March 2012. US Citizenship and Immigration Services (USCIS), Refugee, Asylum, and International Operations Directorate. Correspondence from the Program Manager, Asylum Operations, to the Research Directorate.

_____. N.d.a. Department of State. "Student Visas." <http://travel.state.gov/visa/temp/types/types_1268.html> [Accessed 29 Feb. 2012]

_____. N.d.b. Department of State. "Exchange Visitor Visas." <http://travel.state.gov/visa/temp/types/types_1267.html> [Accessed 24 Feb. 2012]

_____. N.d.c. Department of Homeland Security. "Student and Exchange Visitor Program." <http://www.ice.gov/sevis/> [Accessed 19 Mar. 2012]

_____. N.d.d. US Citizenship and Immigration Services (USCIS). "Q: Who Is Eligible to Apply for Asylum?" <http://www.uscis.gov/portal/site/uscis/menuitem. 5af9bb95919f35e66f614176543f6d1a/?vgnextoid=c1d80efdea7fe 010Vgn VCM1000000ecd190aRCRD&mp;a&vgnextchannel=f39d3e4d77d73210VgnVCM100000082 ca60aRCRD> [Accessed 5 Mar. 2012]

_____. N.d.e. US Citizenship and Immigration Services (USCIS). "Asylum Bars." <http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=cf5318a1f8b73210VgnVCM100000082ca60aRCRD&vgnextchannel= f39d3e4d77d73210VgnVCM100000082ca60aRCRD> [Accessed 5 Mar. 2012]

_____. N.d.f. US Citizenship and Immigration Services (USCIS). "Obtaining Asylum in the United States." <http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919 f35e66f 614176543f6d1a/vgnextoid=dab9f067e3183210VgnVCM100000082ca60aRCRD&vgnext channel=f39d3e4d77d73210VgnVCM100000082ca60aRCRD> [Accessed 28 Mar. 2012]

Additional Sources Consulted

Oral sources: Attempts to contact officials at the American embassies in Kabul and Skopje, an academic at Stanford University, and representatives of Human Rights First and the US Committee for Refugees and Immigrants were unsuccessful. An official at the Embassy of the United States in Ottawa and a representative of Americans for Justice were unable to provide information.

Internet sites, including: Factiva; Freedom House; Human Rights First; United Nations Refworld, United States embassies in Kabul, Pristina and Skopje.