Immigration and Nationality Act 214(b) reform: Students shouldn’t have to prove they’ll go home after graduating to get a visa.

Foreign Students Shouldn’t Have to Prove They’ll Go Home After Graduating to Get a Visa

Foreign Students Shouldn’t Have to Prove They’ll Go Home After Graduating to Get a Visa

The citizen’s guide to the future.
Oct. 21 2014 9:39 AM
FROM SLATE, NEW AMERICA, AND ASU

The International-Student Revolving Door

Foreign students shouldn’t have to prove they’ll go home after graduating to get a visa.

Students take an exam
Foreign graduate students and postdocs, especially in STEM fields, make up a large and increasingly essential element of U.S. higher education.

Photo by Thinkstock

This piece was adapted from an article in the Fall 2014 edition of Issues in Science & Technology.

Alena Shkumatava leads a research group at the Curie Institute in Paris, where she studies how an unusual class of genetic material called noncoding RNA affects embryonic development, using zebrafish as a model system. She began this promising line of research as a postdoctoral fellow at the Massachusetts Institute of Technology’s Whitehead Institute. She might still be pursuing it there had it not been for her desire to visit her family in Belarus in late 2008. What should have been a short and routine trip “turned into a three-month nightmare of bureaucratic snafus, lost documents and frustrating encounters with embassy employees,” she told the New York Times. Discouraged by the difficulties she encountered in leaving and re-entering the United States, she left MIT at the end of her appointment to take a position at the Curie Institute.

Shkumatava’s experience has become increasingly familiar—and troublesome—for the nation. For the past 60 years, the United States has been a magnet for top science and engineering talent from every corner of the world. The contributions of hundreds of thousands of international students and immigrants have helped the country build a uniquely powerful, productive, and creative science and technology enterprise:

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  • More than 30 percent of all Nobel laureates who have won their prizes while working in the United States were foreign-born.
  • Roughly 40 percent of Fortune 500 firms—Google, Intel, Yahoo, eBay, and Apple, among them—were started by immigrants or their children.
  • At the 10 U.S. universities that have produced the most patents, more than three out of every four of those patents involved at least one foreign-born inventor.
  • More than five out of six patents in information technology in the United States in 2010 listed a foreign national among the inventors.

The United States is in a worldwide competition for the best scientific and engineering talent. But its regulations and procedures have failed to keep pace with today’s increasingly globalized science and technology. Rather than facilitating international commerce in talent and ideas, they too often inhibit it, discouraging talented scientific visitors, students, and potential immigrants from coming to and remaining in the United States.

Many elements of the visa and immigration system need attention, as I discuss at length in an article for Issues in Science & Technology. But one critical reform involves reconsidering the requirement that STEM students demonstrate intent to return home.

Under section 214(b) of the Immigration and Nationality Act, all persons applying for a U.S. visa are presumed to be intending to immigrate. In practice, this means that a person being interviewed for a student visa must persuade the consular officer that he or she does not intend to remain permanently in the United States. Simply stating the intent to return home after completion of one’s educational program is not enough. The applicant must present evidence of strong ties to the home country, such as connections to family members, a bank account, a job or other steady source of income, or a house or other property.

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For students, especially those from developing nations, this is often not a straightforward matter. Even though U.S. consular officers are instructed to take a realistic view of these young people’s future plans and ties, many visa applicants fail to meet this subjective standard. Unsurprisingly, the majority of visa denials are due to failure to overcome the presumption of immigrant intent.

The Immigration and Nationality Act was enacted in 1952—an era when foreign students in the United States were relatively rare. But by 2012–2013 there were more than 819,000 international students in U.S. higher education institutions, nearly two-thirds of them at doctorate-granting universities. Foreign graduate students and postdocs, especially in STEM fields, make up a large and increasingly essential element of U.S. higher education. According to recent data from the National Science Foundation, for example, more than 70 percent of full-time graduate students in electrical engineering and 63 percent in computer science in U.S. universities are international students.

In the sense that it prevents prospective immigrants from using student visas as a “back door” for entering the United States (that is, if permanent immigrant status is the main, but unstated, purpose of seeking a student visa), it might be argued that the provision is serving its intended purpose. The problem, however, is the dilemma it creates for legitimate students who must demonstrate the intent to return home despite a real and understandable uncertainty about their future plans.

Interestingly, despite the obstacles that the U.S. immigration system poses, many students, especially those who complete a Ph.D. in a STEM field, do manage to remain in the country legally after finishing their degrees. This is possible because employment-based visa categories are often available to them and permanent residence, if they qualify, is also a viable option. The regulations allow F-1 (nonimmigrant student) visa holders a 60-day grace period after graduation. In addition, graduating students may receive a one-year extension for what is termed Optional Practical Training, so long as they obtain a job, which may be a paying position or an unpaid internship. Those who receive a bachelor’s, master’s, or doctorate in a STEM field at a U.S. institution may be granted a one-time 17-month extension of their OPT status if they remain employed.

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While on F-1 OPT status, an individual may change status to an H-1B (temporary worker) visa. Unlike the F-1 student visa, the H-1B visa does allow for dual intent. This means that the holder of an H-1B visa may apply for permanent resident status—that is, a green card—if highly qualified. This path from student status to a green card, circuitous though it may be, is evidently a popular one, especially among those who receive doctorates. Michael G. Finn of the Oak Ridge Institute for Science and Education has long tracked stay rates of foreign citizens who receive STEM doctorates in the United States. His research indicates that of 9,223 foreign nationals who received science and engineering doctorates at U.S. universities in 1999, two-thirds were still in the United States 10 years later. Indeed, among those whose degrees were in physical and life sciences, the proportion remaining in the United States was about three-quarters.

Reform of 214(b) poses something of a dilemma. Although State Department officials understandably prefer not to discuss it in these terms, they evidently value the broad discretion it provides consular officers to exclude individuals who they suspect, based on their application or demeanor, pose a serious risk of absconding and/or overstaying their visa, but without having to provide specific reasons. One might argue that it is important to give consular officers such discretion, given that they are, in most cases, the only officials from either the federal government or the relevant academic institution who actually meet the applicant face to face.

On the other hand, 214(b) may also serve to deter many otherwise well-qualified potential students from applying, especially those from developing nations, who could, U.S. STEM education in hand, become valuable assets for the United States or their home countries.

What is needed is a more flexible policy that provides the opportunity for qualified international students who graduate with bachelor’s, master’s, or Ph.D. STEM degrees to remain in the United States if they choose to do so, without allowing the student visa to become an easy way to subvert regulations on permanent immigration. It makes no sense to try to make such distinctions by denying the fact that people who are applying to study in the United States may be uncertain about their plans four (or more) years later.

Because 214(b) is part of the Immigration and Nationality Act, this problem requires a legislative fix. The immigration reform bill that passed the Senate in June 2013 contains a provision that would allow for discretion on the part of the consular officer without forcing the student visa applicant to make a choice that he or she is not really capable of making. Anyone who changed majors during college knows how difficult it can be for an applicant to guess where he or she will be in four years.

This article is part of Future Tense, a collaboration among Arizona State University, New America, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, visit the Future Tense blog and the Future Tense home page. You can also follow us on Twitter.