Parents go to great lengths to carve out the best future they can for their son or daughter, and giving their child a US education is something many families strive for. However, well-intentioned parents can sometimes inadvertently take actions that unfortunately can have significant adverse consequences for both their children and themselves.
Common Scenarios
Let's explore some scenarios parents may be contemplating:
Scenario 1: Mother and 10 year old child are British citizens and hold valid ESTA authorisation for travel to the USA as tourists. The mother wishes to have the child enrolled in school in the USA; they plan on entering the country on the Visa Waiver Program to have the child start school in the US.
Scenario 2: Father has an aunt who is a US citizen and lives in the USA. The education system is not very good in the country where father lives and he agrees with his aunt that the best thing for his 16 year old daughter would be to send her to USA, using the daughter's existing B-2 tourist visa, so that she can live with the aunt and be enrolled in high school in the USA.
Unfortunately, both scenarios are doomed under US immigration law. The regulations specify that a B-1 visitor for business or B-2 visitor for pleasure visa holder "violates the conditions of his or her B-1 or B-2 status if the alien enrolls in a course of study." The regulations further specify that a person who wishes to study must first obtain an F-1 or an M-1 student visa before starting studies in the USA. Parents who enrol their children in school in violation of this prohibition risk visa cancellation (revocation) for their child and permanent visa ineligibility for themselves.
For the sake of completeness, and bearing in mind that the scenarios above would likely be excluded, there is a very narrowly carved exception for individuals whose primary purpose in travelling to the USA is tourism who will be engaging in a short course of study of no more than 18 hours per week where the programme is recreational or vocational in nature (i.e. not leading to a degree). A visa applicant planning to engage in a short course of study on a B-2 visa should discuss their proposed study with the Consular Officer to avoid possible allegations of misrepresentation further down the road and their visa may be annotated to confirm that studying incidental to the visit is allowed.
Possible Solutions
A person who wishes to study in the USA generally needs to apply for a student visa. The F-1 student visa is for academic study and the M-1 student visa is for study which is not principally academic in nature (i.e. vocational study). The US Embassy in London specifies some additional requirements that exist with regards to the student and the institution where the child plans to study.
An important consideration for school-age children is that studying at publicly financed schools is either not permitted or is severely limited depending on the child's age. Children wishing to attend elementary school or middle school cannot do so on an F-1 visa. High school age students are limited to attending public high school for twelve months and must make arrangements ahead of time to reimburse the school for the full (unsubsidised) tuition cost. Parents wishing to enrol their children in school in the USA may wish to investigate private schools which are not affected by these restrictions under the F-1 student visa regulations.
Please bear in mind that if the child's parents already hold a different US visa (for instance, if the parent is working in the USA on H-1B visa), that may allow the child to study in the USA by obtaining the derivative visa (where the parent holds an H-1B visa, the child would receive an H-4 visa and could be enrolled in publicly funded school). For a full list of which non-immigrant visa holders can study in the USA, please see this handy Chart compiled by U.S. Immigration and Customs Enforcement.
If you are considering enrolling your child in school in the USA, it is important to obtain legal advice specifically tailored to your situation from a knowledgeable US immigration lawyer. The article above provides general information only and does not constitute legal advice.
Want the latest U.S. immigration news? Follow us on Facebook, Twitter, Google+ and LinkedIn. You can also reach us on +44/ (0)208.528.1646 or info@ailawoffice.com.