As August approaches, most public schools start classes in the latter half of that month. Foreign nationals often get seemingly conflicting answers to the question of who can legally attend public schools. Often a foreign national moving into the US does not realize that there is more than one answer to the question.
First, children can attend a public school located in the area in which they are residing. This is true regardless of their immigration status. This is what the school personnel will tell the parent who rents or buys a home in the area the school serves.
BUT, if foreign national children attend US public schools, they may violate their immigration status. If their parents are in the US with B1/B2 tourist visa status, and the children have the same status, the children will violate their status if they attend a public school. [8 CFR 214.2(b)(7)] This can affect the eligibility of the parents and the children to obtain other non-immigrant visas in the future.
If the parents are in the US and admitted in certain other non-immigrant classifications and the children have been admitted in a derivative (dependent) classification related to the parent’s visa, then the children will not violate their status. Some of the most common non-immigrant visa classifications that allow the dependent children to attend public schools without adverse immigration consequences include the following ones:
A (generally for diplomats—consul officers and staff; military)
E (treaty traders and treaty investors)
F (student—generally at college or university)
G (international quasi government agency)
H (professionals; trainees)
I (international press)
J (exchange visitor—student, research, employment)
L (intracompany transferee)
O (extraordinary ability)
R (religious worker)
Often a parent may not be able to obtain one of these non-immigrant visa classifications until after the school year begins—and may prefer not to pursue a student visa for the child to attend a private school. To avoid problems in applying for and obtaining the visa classification, the parent should consider postponing the children coming to the US until the visa status has been approved for the parent. In the alternative, a parent could have his/her child tutored or home-schooled until the status has been approved or can be requested.
Some foreign national children do not attend public schools. They attend private schools and are in the United States with F1 student visa classification based on certain documents that the school issues to the student and a SEVIS filing the student makes with US Immigration & Customs Enforcement (ICE). Not all private schools have this authorization. Some choose not to because of the ICE application filing fee cost and extensive documentation requirements. Some choose not to because of the records required on an ongoing basis by ICE about student enrollment and attendance. Generally, public schools elect not to seek authorization to issue student visas often because it is almost impossible to deal with the interface of state student funding allocations and F1 student visa programs. (Public elementary schools are expressly prohibited from being approved to issue student visas.) Not all private schools have this authorization in part because it is an expensive and complicated application process to obtain this authorization.
A child living within the boundary of a given public school can attend that school but doing so may be a violation of his or her immigration status. Generally, it is a violation of a child’s immigration status if he/she attends public school while in the US as a B2 visitor.
Nancy Taylor Shivers July 2014