DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 214 and 248
[INS No. 2195-02]
RIN 1115-AG60
Requiring Change of Status From B to F-1 or M-1 Nonimmigrant
Prior to Pursuing a Course of Study
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Interim rule with request for comments.
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SUMMARY: This interim rule amends the Immigration and Naturalization
Service (Service) regulations by eliminating the current provision
allowing a B-1 or B-2 nonimmigrant visitor for business or pleasure to
begin attending school without first obtaining approval of a change of
nonimmigrant status request from the Service. This change will enhance
the Service's ability to support the national security needs of the
United States and is within the Service's authority under section 248
of the Immigration and Nationality Act (Act). The amendment will ensure
that no B nonimmigrant is allowed to enroll in school until the alien
has applied for, and the Service has approved, a change of nonimmigrant
status to that of F-1 or M-1 nonimmigrant student.
DATES: Effective date: This interim rule is effective April 12, 2002.
Comment date: Written comments must be submitted on or before June
11, 2002.
ADDRESSES: Please submit written comments to the Director, Regulations
and Forms Services Division, Immigration and Naturalization Service,
425 I Street, NW, Room 4034, Washington, DC 20536. To ensure proper
handling, please reference the INS No. 2195-02 on your correspondence.
Comments may also be submitted electronically to the Service at
insregs@usdoj.gov. When submitting comments electronically, please
include INS No. 2195-02 in the subject heading. Comments are available
for public inspection at this location by calling (202) 514-3048 to
arrange for an appointment.
FOR FURTHER INFORMATION CONTACT: Craig Howie, Business and Trade
Services Branch, Adjudications Division, Immigration and Naturalization
Service, 425 I Street, NW., Room 3040, Washington, DC 20536, telephone
(202) 353-8177.
SUPPLEMENTARY INFORMATION:
Background
What Is a B Nonimmigrant Alien?
A B nonimmigrant is an alien whose admission to the United States
is based on a temporary visit for business (B-1) or a temporary visit
for pleasure (B-2). Section 101(a)(15)(B) of the Act, 8 U.S.C.
1101(a)(15)(B), defines the visitor classification as:
An alien (other than one coming for the purpose of study or of
performing skilled or unskilled labor or as a representative of
foreign press, radio, film, or other foreign information media
coming to engage in such vocation) having a residence in a foreign
country which he has no intention of abandoning and who is visiting
the United States temporarily for business or temporarily for
pleasure.
Based on the statutory language, the Service has long held a B-1
nonimmigrant to be one seeking admission for legitimate activities of a
commercial or professional nature such as meetings, conferences, or
consultations in the United States in connection with the conduct of
international business and commerce. A B-2 nonimmigrant is one seeking
admission for activities relating to pleasure such as touring, family
visits, or for purposes of receiving medical treatment.
What Is the Service Changing in This Interim Rule?
The Service is eliminating the ability of an alien admitted to the
United States as a B-1 or B-2 nonimmigrant to begin attending classes
without first applying to the Service, and obtaining the Service's
prior approval, for a change of nonimmigrant status to that of an F or
M nonimmigrant student. This rule expressly prohibits a B nonimmigrant
from enrolling in a course of study or taking other actions
inconsistent with B nonimmigrant status unless and until the Service
has approved the B non-immigrant's change to an appropriate student
nonimmigrant status.
Why Is the Service Instituting This Change?
The terrorist attacks of September 11, 2001, highlight the need of
the Service to maintain greater control over the ability of an alien to
change nonimmigrant status once the alien has been admitted to the
United States. This interim rule will allow the Service to fully review
any request from a B nonimmigrant to change nonimmigrant status to that
of full-time student before allowing the alien to enroll in a Service-
approved school. The elimination of the ability of a B nonimmigrant to
begin classes before receiving the Service's approval of the change of
nonimmigrant status is also consistent with the Act's requirement in
section 101(a)(15)(B) that a B nonimmigrant not be a person coming to
the United States for the purpose of study.
Why Is This Change Limited to B Nonimmigrants?
In the process of drafting this rule, the Service considered making
its requirements (i.e., that nonimmigrants obtain a student visa before
being able to take courses) apply to anyone in the United States not
currently in student status. Such a requirement would be broader than
the rule as presently drafted, which applies just to nonimmigrants in
B-1 or B-2 visitor status.
B nonimmigrants generally enter the United States for purposes of
tourism or for a business trip. Pursuing a course of study is
inconsistent with these purposes, and thus inconsistent with B status.
However, pursuit of studies generally is consistent with most other
nonimmigrant statuses, and thus such a broader rule could have
unintended and overly burdensome consequences for such nonimmigrants.
For some, such a J-1 au pair or an H-3 trainee, the courses might be an
integral part of the program for which they obtained their status. For
many dependent spouses, such as H-4s, derivatives of A or G diplomats,
or NAFTA TN-2s, studies may be their only permissible pursuit while
accompanying their spouse who is working in the United States.
Dependent children are, in fact, expected to attend school. Even some
principals in nonimmigrant status (e.g., H-1Bs, L-1s) may take courses
incident to status to enhance their professional development. Requiring
that these individuals change to F-1 or M-1 status in order to pursue
studies would eliminate their ability to attend part-time, since by
statute F-1s and M-1s must be pursuing a full course of study and since
a nonimmigrant is prohibited from holding more than one nonimmigrant
status while in the United States.
How Does This Interim Rule Affect B-1 or B-2 Nonimmigrants Previously
Admitted to the United States?
This interim rule will accommodate B-1 or B-2 nonimmigrants who
have already been admitted to the United States prior to April 12,
2002. In view of the Service's prior policy, this interim rule does not
prevent such aliens from starting a course of study after filing an
application for change of status, or require those aliens to stop
taking
[[Page 18063]]
classes while the Service processes the change of nonimmigrant status
request.
However, this interim rule applies to all aliens who are admitted
as, or change their status to, a B-1 or B-2 nonimmigrant, on or after
April 12, 2002. This interim rule also applies to all current B
visitors who apply for an extension of their B nonimmigrant status on
or after April 12, 2002.
Request for Comments
The Service is seeking public comments regarding this interim rule.
The Service requests that parties interested in commenting on the
provisions contained within this rule do so on or before June 11, 2002,
as the Service will not extend the comment period.
Good Cause Exception
The Service's implementation of this rule as an interim rule, with
provisions for post-promulgation public comments, is based on the
``good cause'' exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). The
reason and necessity for the immediate promulgation of this rule are as
follows: The rule is necessary to ensure the national security of the
United States by eliminating the ability of a B nonimmigrant to enroll
in school until the Service has approved a change of nonimmigrant
status application filed by the prospective alien student. The previous
rule allowing such enrollment prior to adjudication of the application
was used by some of the September 11th terrorists to obtain flight
training in the United States. Closing this loophole is essential to
efforts to prevent this abuse from recurring.
There is also reasonable concern that publication of this
regulation as a proposed rule, one that would not take effect until
after a final rule was promulgated, could lead to the counterproductive
result of a surge of entries by individuals who have no intention of
going through the consular screening process overseas and who would
seek admission as a B nonimmigrant while having the intent of becoming
an F or M nonimmigrant student after admission to the United States.
However, this interim rule takes account of the interests of those
aliens currently admitted to the United States in B nonimmigrant
status. Such aliens will continue to be governed by the Service's prior
policy regarding change to F or M nonimmigrant status, for the
remainder of their currently-authorized B nonimmigrant admission.
Accordingly, the Service believes that advance public notice and
comment on this regulation would be impracticable and contrary to the
public interest. Therefore, there is good cause under 5 U.S.C. 553(b)
and (d) for dispensing with the requirements of prior notice and to
make this rule effective upon the date of publication in the Federal
Register.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has
reviewed this regulation and, by approving it, certifies that this rule
will not have a significant economic impact on a substantial number of
small entities. This rule applies only to B nonimmigrants applying to
change to either F or M nonimmigrant status. It does not affect small
entities as that term is defined in 5 U.S.C. 601(6).
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
Executive Order 12866
This rule is considered by the Department of Justice, Immigration
and Naturalization Service, to be a ``significant regulatory action''
under Executive Order 12866, section 3(f), Regulatory Planning and
Review. Accordingly, this rule has been submitted to the Office of
Management and Budget for review.
Executive Order 13132
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
Executive Order 12988, Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, all
Departments are required to submit to the Office of Management and
Budget (OMB), for review and approval, any reporting or record keeping
requirements inherent in a rule. This rule does not impose any new
reporting or record keeping requirements under the Paperwork Reduction
Act.
List of Subjects
8 CFR Part 214
Administrative practice and procedure, Aliens, Employment, Foreign
officials, Health professions, Reporting and recordkeeping
requirements, Students.
8 CFR Part 248
Aliens, Immigration, Reporting and recordkeeping requirements.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 214--NONIMMIGRANT CLASSES
1. The authority citation for part 214 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1101 note, 1103, 1182, 1184, 1186a,
1187, 1221, 1281, 1282; sec. 643, Pub. L. 104-208, 110 Stat. 3009-
708; Section 141 of the Compacts of Free Association with the
Federated States of Micronesia and the Republic of the Marshall
Islands, and with the Government of Palau, 48 U.S.C. 1901 note, and
1931 note, respectively; 8 CFR part 2.
2. Section 214.2 is amended by adding and reserving paragraph
(b)(6) and by adding new paragraph (b)(7) to read as follows:
Sec. 214.2 Special requirements for admission, extension and
maintenance of status.
* * * * *
(b) * * *
(6) [Reserved]
(7) Enrollment in a course of study prohibited. An alien who is
admitted as, or changes status to, a B-1 or B-2
[[Page 18064]]
nonimmigrant on or after April 12, 2002, or who files a request to
extend the period of authorized stay in B-1 or B-2 nonimmigrant status
on or after such date, violates the conditions of his or her B-1 or B-2
status if the alien enrolls in a course of study. Such an alien who
desires to enroll in a course of study must either obtain an F-1 or M-1
nonimmigrant visa from a consular officer abroad and seek readmission
to the United States, or apply for and obtain a change of status under
section 248 of the Act and 8 CFR part 248. The alien may not enroll in
the course of study until the Service has admitted the alien as an F-1
or M-1 nonimmigrant or has approved the alien's application under part
248 of this chapter and changed the alien's status to that of an F-1 or
M-1 nonimmigrant.
* * * * *
PART 248--CHANGE OF NONIMMIGRANT CLASSIFICATION
3. The authority citation for part 248 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1184; 1258; 8 CFR part 2.
4. Section 248.1 is amended by revising paragraph (c) to read as
follows:
Sec. 248.1 Eligibility.
* * * * *
(c) Change of nonimmigrant classification to that of a nonimmigrant
student.
(1) Except as provided in paragraph (c)(3) of this section, a
nonimmigrant applying for a change of classification as an F-1 or M-1
student is not considered ineligible for such a change solely because
the applicant may have started attendance at school before the
application was submitted. The district director or service center
director shall deny an application for a change to classification as an
M-1 student if the applicant intends to pursue the course of study
solely in order to qualify for a subsequent change of nonimmigrant
classification to that of an alien temporary worker under section
101(a)(15)(H) of the Act. Furthermore, an alien may not change from
classification as an M-1 student to that of an F-1 student.
(2) [Reserved]
(3) A nonimmigrant who is admitted as, or changes status to, a B-1
or B-2 nonimmigrant on or after April 12, 2002, or who files a request
to extend the period of authorized stay as a B-1 or B-2 nonimmigrant on
or after such date, may not pursue a course of study at an approved
school unless the Service has approved his or her application for
change of status to a classification as an F-1 or M-1 student. The
district director or service center director will deny the change of
status if the B-1 or B-2 nonimmigrant enrolled in a course of study
before filing the application for change of status or while the
application is pending before the Service.
* * * * *
Dated: April 9, 2002.
James W. Ziglar,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 02-8926 Filed 4-9-02; 1:54 pm]
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