On Tuesday, May 27, the international exchange and education community was dealt yet another blow when the Trump administration temporarily paused scheduling new F, M, and J visa appointments.??Politico?reported?that a cable sent to all embassies and consular posts by Secretary of State Marco Rubio called for consular sections to “not add any additional student or exchange visitor (F, M and J) visa appointment capacity until further guidance is issued.” This request stems from the Department’s decision to “evaluate operations and processes in preparation for expanded social media vetting of all student and exchange visitor visa applicants.”??
While initially designed to target higher education, the pause applies to all J-1 program categories. The action directly and negatively impacts a wide range of constituents, including non-immigrant visitors, American secondary schools and higher education institutions, families using au pair help, and businesses relying on J visas for Research & Development, training, and seasonal labor. According to research conducted by the Alliance for International Exchange, a non-profit association that serves as a collective public policy voice of the cultural exchange community in the United States, without international students, the U.S. would forfeit the $43.8 billion they contribute to the U.S. economy and the nearly 400,000 American jobs they support per year.?
The pause has understandably created havoc for a variety of constituencies which interact with the F, M and J visa categories. Although the cable states that “appointments already scheduled can proceed under current guidelines,” there are reports that some previously scheduled interviews were canceled after the cable was sent.?The duration of the pause is also unclear. According to the cable, the pause is “until further guidance is issued […], which we anticipate in the coming days.” In a?press briefing?held-on Thursday, May 29, the Department of State further confirmed that the pause will be short and there “will be an endpoint” that will not be “weeks or months” from now. On the other hand, previous experience with changes to consular guidance has led experts to believe that the delays may be longer, for several reasons:
- Developing a procedure and criteria for social media vetting and training staff for these new tasks may take weeks.
- Per prior instructions, the consulates are also facing staffing cuts. This will put further strain on already understaffed consular teams, forcing them to prioritize ongoing tasks at the expense of new assignments.
- Staff cuts will likely reduce the availability of trained personnel familiar with J, F, and M visa regulations, which may result in delays and errors.
Potential remedies are unlikely to be successful.
- In prior litigation, courts have generally not found standing for lawsuits against the Department of State for matters conducted outside of the United States.
- Entering the U.S. on a different visa (for example, B-1 or B-2) and changing status to J, F, or M post-entry presents several problems:
- Obtaining a visitor visa for the purpose of entering and then seeking a change of status to another category could potentially be seen by a consular officer or, in the context of a change of status adjudication, by United States Customs and Immigration Services (USCIS) as a material misrepresentation/visa fraud. This could result in a denial of the visa, refusal of entry and cancellation of the visa at a port of entry, or denial of a change of status. A finding of misrepresentation would serve to be a basis for future visa denials or other immigration benefits.
- The backlog of visa applications for visitor visas is generally longer than that for F, M, or J visas, which have typically been a higher priority. Whether to stop accepting F, M or J applications to allow more slots for visitor visas is not known in light of staffing shortages. Also, an applicant for a visitor visa has to demonstrate an intent to engage in tourist or business activities of a short-term nature and an intent to return home upon completion of that objective. Consular officers may be on the lookout for individuals seeking visitor visas in order to engage in a post-entry change of status.
Even when visa appointments are resumed, the social media vetting rules will provide new ground for visa denial. The denials will likely be under INA section 214(b), for the lack of a more suitable ground for rejection, which means that an applicant:
- Did not sufficiently demonstrate to the consular officer that [s/he] qualify for the nonimmigrant visa category [s/he] applied for; and/or
- Did not overcome the presumption of immigrant intent, required by law, by sufficiently demonstrating that [s/he has] strong ties to [his/her] home country.
Rejections under INA section 214(b) do not require an explanation, and the decisions are non-reviewable either administratively or judicially. A request to reconsider will likely be forwarded to the same consular officer who has made the initial determination.
The information currently available is scarce, and forecasts are vague. The coming weeks will shed light on the actual effect of this action and help the education and exchange community develop a proper response. Meanwhile, it is important to remember that as destructive as the visa appointment pause is, it is not a J-1 program ban, and J, F, and M visas are still being issued in limited situations, including to visitors whose appointments have already been scheduled, Canadian citizens and nationals, and individuals currently in the United States obtaining a J, F, or M visa through a change of status process.
To minimize the chance of consular delays and rejections, J, F, and M visa applicants are recommended to review their social media accounts prior to entering the U.S., avoiding activity contradictory to or critical of the U.S. administration and its foreign policy and national security priorities.
Most importantly, patience is golden. Since their inception in 1951 (F visas) and 1961 (J visas), programs and activities supported by J, F, and M visas have experienced many challenges, always demonstrating remarkable resilience and adaptability. These programs are not only an essential part of the non-immigrant visa portfolio, but also major drivers of the American educational excellence and economic success. Thanks to strong bi-partisan support, J, F, and M visa programs have thrived through both Democratic and Republican administrations, and the Council expects this trend to continue in the future.
* The author thanks Scott Cooper, Senior Counsel at Fragomen, Del Rey, Bernsen & Loewy, LLP for his help and advice in preparing this article.