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A common mistake we see all too often is foreign nationals entering the United States in B-2 visitor status with their minor school aged children, also in B visitor status, and subsequently enrolling them in school without first obtaining the required F-1 student visa. This error comes to light later in one of two situations – (1) they consult with an immigration attorney about their immigration options to change status and it is uncovered, or (2) more devastatingly, when unrepresented individuals return to their home country to renew their visas, they are blindsided with both a visa denial and charge of inadmissibility as an alien smuggler. The alien smuggler premise is specifically based on bringing a child into the United States for an improper purpose under the B visitor visa category.

Unfortunately, those applying for visitor status to the United States frequently do so without advice from counsel, wholly unaware that their activities in the United States might not be acceptable visitor activities. There are no warnings given by the Department of Homeland Security (DHS). Foreign nationals are expected to know the acceptable tourist activities for a visitor visa. The position of DHS is that tourists should not be attending school or enrolling their children in school. By the time foreign nationals realize this, it is often irreparable.

Since 2002, immigration regulations deem anyone in the United States in B status who enrolls in school before changing status to either F-1 or M-1 to be in violation of their status. This problem can be avoided by either applying for a change of status to F-1 or M-1 and obtaining approval prior to enrolling in school or, preferably, applying for the F-1 or M-1 visa abroad at the U.S. Embassy in their home country before entering.

This is an example and reminder of how strict and unforgiving our U.S. immigration laws can be, and why even a process that seems as straightforward as applying for a tourist visa should be accomplished under the advice and guidance of qualified and experienced immigration counsel. Engaging immigration counsel may protect a child’s future immigration status so as to not to have a blemish on their immigration record in the U.S. nor on that of the parent.

Not only is the child deemed out of valid immigration status, but in the future may experience challenges in obtaining a visa to return to the United States. For the parents, the consequences of being deemed an alien smuggler can be even more severe, with the result of inadmissibility to the United States. Once charged with alien smuggling, parents will need a waiver in order to receive any future non-immigrant visas. Additionally, there is no option for a waiver if applying for an immigrant visa, also known as permanent residence or a green card.

Schools from kindergarten to grade 12 will not deny children within the U.S. access to education. However, this is contradictory to U.S. immigration regulations. If you find yourself in this situation, or you or your child are considering student status, please contact one of our immigration attorneys at Buchanan Ingersoll & Rooney to help you.

For more immigration insights, visit our blog KnowingImmigrationLaw.