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Children Attending Public School on a B-1/B-2 Tourist Visa

By:  Santiago J. Padilla, Esq.

As I have indicated in previous posts, an individual that enters the United States with a B-1/B-2 tourist/business visa is not permitted to study in the United States. See 8 C.F.R. 214.2(b)(7), which specifically states as follows:

"(7) Enrollment in a course of study prohibited. An alien 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 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."

As such, with certain exceptions, an F-1 visa (for academic students) or M-1 visa (for vocational students) must be obtained before enrolling in classes or courses of study. Moreover, the law states that any B-1/B-2 visitor who studies unlawfully will not be eligible to change status to another visa classification.

A common issue arises when a family is in the process of requesting a change of status to a non-immigrant employment based visa, like an L-1A, E-2, or H-1B visa, and the children of the alien being sponsored need to attend public school. The Foreign Affairs Manual provides that children who are entitled to derivative nonimmigrant classification may attend school on a B visa. See 9 FAM 41.11, Note 5.2. Moreover, the Department of State Visa Office has concurred with this practice and has expressly stated that children who may be entitled to derivative non-immigrant status may attend public school on a B visa. See Visa Office Response to AILA/DOS Liaison Meeting dated March 23, 2006. This also applies when the parents of the children are in B status. Specifically, in response to the question as to whether or not a child may attend public school on a B-2 tourist visa, the Visa Office wrote as follows:

"DHS and VO have agreed that if an alien parent is in the U.S. on a legitimate long-term stay on B status, an accompanying child can engage in studies on B status provided that the child's principal purpose for being in the U.S. is to accompany the parent, not to engage in study. This is consistent with the FAM guidance:

9 FAM 41.11 N5.2 Classification of Children Who Will also be Attending School

(TL:VISA-2; 08-30-1987)

A principal alien's child entitled to derivative nonimmigrant classification from the principal alien is not required to qualify under INA 101(a)(15)(F) as a nonimmigrant student, even though the child will attend school in the United States while accompanying the principal alien."

See Visa Office Response to AILA/DOS Liaison Meeting dated March 23, 2006, at page 8. As such, when the parents of the alien child are here for a legitimate purpose, such as organizing the company that will sponsor the nonimmigrant visa, his or her dependent children are able to attend public school on a B-1/B-2 visa.

In addition, while 8 U.S.C. ยง214(L) and Section 41.61 of the Foreign Affairs Manual provide that an alien may not attend public school without reimbursing the school for the cost of such education, those sections only apply to foreign students in F-1 status. Those provisions do not apply to dependents of foreign nationals in the U.S. on long-term non-immigrant visas. See State Dept. Reminder re F-1s in Public Schools, posted March 28, 2000, attached hereto. Therefore, not only is public school attendance authorized, but nowhere in the regulations does it require the beneficiary parents of such children to pay for the public school education.

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If you have any questions regarding the activities that a person can participate in with a tourist visa or any other immigration law issues, please do not hesitate to contact me, Santiago J. Padilla, Esq., either at 800-483-7197, at [email protected], or on the internet.

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