An F-1 applicant has to be able to demonstrate intention to depart after the studies are finished
A reader asks:
I hold an F-1 visa, which has expired, and I am now on OPT. The company applied for H-1B, but it was rejected several times. I have submitted a National Interest Application (NIW) application, which is under review. I am considering returning to China at the end of the year and interviewing for F-1. USCIS updated its policy on F and M visas in December 2023, allowing students to apply for green cards during their studies without affecting their status. When I think about staying here alone during the Christmas holidays, I can’t help but want to go back to China. At present, the case I have seen is that after the I-140 is passed, there is no problem traveling to and from the United States with a valid F-1. I want to ask if there is any risk in going back for an F-1 interview during the review period after submitting a green card application?
Mr. Alan Lee Answers,
The December 2023 guidance clarifies that F and M students must have a foreign residence that they do not intend to abandon, but that such students may be the beneficiary of a permanent labor certification application or immigrant visa petition and may still be able to demonstrate their intention to depart after a temporary period of stay. However, the guidance is not a guarantee that an F-i visa will be issued. An applicant still has to be able to demonstrate intention to depart after the studies are finished.
In addition, the election of Donald Trump is concerning as he has a negative stance on immigration and has a raft of executive orders including many supposedly in the field of immigration which may make the usual immigration processes more difficult. I note that some colleges and universities have already advised their students not to take trips overseas during the Christmas break because of the enhanced risk of problems in returning.