The Student Visa "Crapshoot"

Getting a visa is an iffy proposition, says immigration lawyer David Ware. Still, there are ways international students can lift their chances

How difficult is it for international students to get a student visa? They may not be as hard to obtain as some believe, but there's plenty of uncertainty to the process, according to David Ware, a lawyer and author who specializes in immigration issues. As Ware notes, consuls who make the determination have about three minutes to decide each case.

Ware has practiced exclusively in the area of immigration and nationality law since 1982. He is a frequent speaker and teaches immigration law at Southern University School of Law. Fluent in Spanish and Portuguese, he has conducted educational programs at Vanderbilt University's Owen School of Management and is a member of the U.S. Immigration Lawyers Assn. He completed his Juris Doctor at the University of Texas in 1981. Ware recently spoke with BusinessWeek Online reporter Jeffrey Gangemi about how international students can increase their chances of getting a U.S. visa. An edited transcript of their conversation follows:

Q: Is it as hard as everyone thinks for international students to obtain a student visa?


Yes and no. The perception that it is extremely hard is perhaps a little bit skeptical, but the perception that it is a crapshoot is completely justified. There's one factor -- assuming the person has adequate financing to study in the U.S. -- that the consul looks at to determine whether to grant the student visa: the ties to the home country and the likelihood that the person will return after finishing studies in the U.S.

This is codified into law in section 214B of the Immigration Nationality Act. This section states that applicants are presumed to be attempting to immigrate permanently to the U.S., unless they prove otherwise to the consul. Students must prove that they have a residence abroad that they have no intention of abandoning.

Q: How does the consul make that judgment?


Consuls have about three minutes to make a decision on each case. Usually, the consul doesn't go by specific evidence provided by the applicant, but rather the reading of the visa application and their gut feeling. They take into account the applicant's socioeconomic background; the conditions in the home country with regard to economy, social strife, and economic and social development; and the person's demographic profile.

Are they single or married? Are they leaving their family behind when they come to study in the U.S.? Does the degree they're getting make sense? These are a few of the different factors that they look at, and in three minutes or less, they coalesce all of these factors into a judgment: denial or grant.

Q: Who is most likely to be granted a visa?


People who are upper-middle class in their home country, and those who are coming to private schools in the U.S. are generally more likely to be granted a visa. Those who are attending a private school tend to be better off financially.

Also, people whose families are integrated into the community and economic structure back home are considered more likely to return -- and thus are more likely to get a visa. Perhaps dad or mom has a business in the home country, a factory or some sort of service business. It's perceived that those types of individuals are more likely to go home and form part of the elite in their home country, rather than try to stay in the U.S.

Q: Can a lawyer help overturn a student visa denial?


Lawyers are rarely helpful in arguing cases of denial of student visas. They are much more helpful, sometimes indispensable, in helping arrange a work visa. Basically, a consul's decision [on a visa application] is the word of God. It's not directly reviewable in a U.S. court.

Q: Are there quotas from each country?


Even if a country is in pretty bad shape, that doesn't mean it's impossible for its citizens to get student visas. Although the approval of applications is supposed to be based on the applicant's likelihood of going home, there's a certain amount of grin and wink to all this. For example, the return rate in the 1990s for Chinese who came to study in America was about 10% or less. They rarely returned to their home country.

Consuls had this data, but for political reasons, they would never deny visas to 90% of Chinese applicants. It would damage diplomatic relations with China and damage the economic health of U.S. institutions to do so.

Q: What kinds of changes have there been since September 11?


Contrary to popular belief, the main change since September 11 has not been in the visa denial rate, which has fluctuated very little since then. The main changes have been in the security checks that are required to get or renew the visa.

Before September 11, the State Dept. would send an applicant's information to the FBI or CIA for a background check, and if they got no response after a certain amount of time, they would go ahead and issue the visa. Now, the consul must get a positive response from the agency to be able to issue the visa. This has caused much longer wait times for students.

Q: What kinds of background checks are in place?


There are two -- the Mantis and Condor. People whose occupation comes under the "Technology Alert List" are susceptible to the Mantis background check. The Technology Alert List comprises fields that could be used against the U.S. in some act of terrorism, or that could be transferred to rogue nations. It includes fields as obviously dangerous as nuclear reaction, but also less obvious ones like urban planning.

The Mantis is for people from specific nationalities more than others, and it's up to the consulate's discretion whether to order one of these. In other words, a student from Pakistan is much more likely to be subjected to a security check than a student from Sweden, for example -- even if they are in the same industry.

The other background check added since September 11 is the so-called "list of 27" security check, known as Condor. It is performed on males between the ages of 17 and 60 from certain countries (including those born in or citizens of Afghanistan, Algeria, Bahrain, Bangladesh, Djibouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, possibly Turkey, United Arab Emirates, and Yemen).

The State Dept. attempted to keep the list secret, but it was leaked to The New York Times. Condor is a background check designed to make sure that the person doesn't have any links to terrorist organizations.

Q: How has getting a work visa after business school changed in the last few years?


Congress imposed a limit on the H-1B work visas in the 1990s. The H-1B visa category allows qualified foreign nationals with at least a BA to work temporarily in a specialty occupation that involves highly specialized knowledge, according to the Immigration & Nationality Act. The limit on these visas reached a high of 195,000 from 2001 to 2002, before dropping back down to 65,000 in 2003. It has since been reduced further to 58,200 by two free trade agreements that guaranteed a number of those visas would be given to citizens of Chile or Singapore.

Most MBAs who are hired by regular companies (not university-affiliated research institutions or nonprofits) will fall under this quota. The application cycle opens on Apr. 1 even though the fiscal year doesn't begin until Oct. 1. It is critical to apply as early as possible, because the quota gets filled very quickly. Students must also have some type of work authorization or proof of employment that lasts through Oct. 1.

Q: Is anything being done to expand the quota?


In December, Congress expanded the visa cap to include an additional 20,000 spots available to persons who have Master's or higher that were earned in the U.S. Those are about to become available and will be available to MBAs. They were supposed to be made available in early March, but reportedly there has been a slight delay. Check the State Dept. Web site to keep abreast of this topic.

Q: What are the biggest mistakes that people make in applying for work or student visas?


If a student is approved for a visa the first time, he or she often assumes it will be approved every time. For some countries, student visas only allow for one or two entries into the U.S. If students leave to go on vacation, for example, then try to come back, they will have to reapply and could be denied. For instance, if they have since secured a job in the U.S. but have not yet gotten a work visa, the consul may suspect that they won't return to their home country, especially if they come from a poor area.

My advice to students is that, if you're already here with a student visa, finish your studies, find a job, then go home for a visit when you have a work visa. The work visa doesn't have the requirement that you return to a residence abroad when the visa expires. That makes it easier to renew.

Another mistake I see people making with the work visa is trying to complete the process on their own. They often go online and think it looks really simple. People don't realize how complicated the immigration laws are. They are often compared to the tax code for this reason. I would advise all internationals planning to get a work visa to get an attorney, either with their hiring company or on their own.

Students also fail to take advantage of what we call Optional Practical Training. This is a year of employment that is given at the end of each level of study. Students have to apply for it, but it's given by U.S. Citizenship & Immigration Services. Go to the vocational-student Web site and scroll down for more information on eligibility. The three criteria for being approved are: the proposed employment must be for the purpose of practical training, it must be related to your studies, and you cannot receive the same type of training in your country of residence.

Q: When should students start getting their documents together to attend business school in the fall?


For the regular admission cycle, notification is usually delivered in the spring. The school will then issue international students a form called an I-20. Students should go to their consulate to learn application procedures and to make an appointment. (Sometimes there are long waiting lists for appointments.)

Also, I would recommend leaving at least 60 days for background and security checks. For most cases, it would be safe to start this process at least three months before the proposed date of enrollment in the program.

Q: What are important resources for international students?


The State Department, the U.S. Citizenship and Immigration Services, and the U.S. Immigration and Customs Enforcement . This (latter) organization controls interior enforcement of immigration laws, as well as overseeing the student and exchange visitor information system, which tracks students once they arrive in the U.S. I also invite all internationals to use our company Web site, David Ware & Associates. We constantly update it and include a section for breaking news on the immigration front.