On December 20, 2023, the USCIS issued a policy alert signaling a major shift in its long-established policy regarding F and M nonimmigrant student visa categories and their inability to pursue permanent residency while present in the United States under these visas. As these individuals do not have “dual intent” (the ability to pursue permanent residency), they must (1) continually show their intent to depart and (2) demonstrate that they maintain a foreign residence. Although they are not prohibited from filing permanent labor certifications (PERMs) or the subsequent I-140 petition, doing so can create difficulties if and when the student needs to extend their F-1 status.
This new directive does not explicitly indicate that F and M visas now have dual intent. However, the language reads as such. It explains that, although these students must maintain a foreign residence which they have no intention of abandoning, they will still be able to show their intention to depart after their temporary period of stay, even if they are the beneficiaries of a PERM application, and I-140 petition, or any other immigrant petition. So, it seems that pursuing permanent residency while present in F and M status is now a viable option.
As with most policy changes, individual officers will be slow to accommodate the change. We can expect that some individuals who decide to move forward with the immigrant process in the early stages of their F-1 status may encounter difficulties. However, with this policy shift, the student’s decision will be defensible as long as they can prove the continued existence of their foreign residence.
If you have questions about the nonimmigrant student visa categories or any other U.S. immigration-related issue, contact us. We work with our clients and evolving policy updates to ensure our clients get the right advice for their particular situations.
