Delhi Court permits students to pursue higher studies in US without J-1 visa

The Delhi High Court has directed the centre to process the applications of two brothers who aspired to pursue higher education from a foreign university for disbursement of Scholarship.

The court directs that the centre should not insist them to obtain J-1 visa, which grants mandatory two-year home country stay on completion of the course. The university in which they have secured admission in the United States only provides for F-1 visa.

Justice Vibhu Bakhru instructed the two brothers- Gaurav Deep and Varun Deep to provide an undertaking to the court that they shall not apply for a change of F-1 visa status after heading to the United States.

In the present matter, a public advertisement was issued on February 22, 2016 by the Ministry of Social Justice and Empowerment for a scholarship programme (Scheme of National Overseas Scholarship for Scheduled Castes) for sponsoring students from Scheduled Castes, De-notified, Nomadic and Semi-nomadic tribes, landless agricultural labourers and traditional artisans categories for studies in specified field in foreign universities.

The petitioners have completed B-Tech in Information Technology and applied under this scheme. At the same time, they secured admission and scholarship in Auburn University, US for pursuing a 28th-month course in Masters in Software Engineering.

The government insisted here that the candidate is required to obtain only J-1 visa for obtaining admission in any US university. If they do not obtain J-1 visa then they will not be eligible for scholarship and he or she may have to fund the studies personally.

However, the university only granted them F-1 visa.

The crucial difference between J-1 and F-1 visa is that an individual can change their status from “ F-1” visa to other visas but the same option is not available in case of J-1 visa. In case of F-1 visa, the applicants need not return to India and can apply for other visa but in case of J-1 visa it mandatorily requires the student to return back their home country for at least a period of two years.

The petitioners then approached the Delhi High Court to allow them to proceed to US under F-1 visa. The court ordered, “ In view of the above, the respondents are directed to process the petitioners' application for disbursement of scholarship without insisting on the petitioners' obtaining a J-1 Visa. The petitioners can proceed overseas on an F-1 Visa subject to the the petitioners' furnishing an undertaking by way of an affidavit to this Court within a period of two weeks affirming that the petitioners would return to India immediately on completion of their course and would further not travel to USA for a further period of two years (as is the attendant condition for a J-1 Visa). The petitioners would also arrange a surety to furnish a personal bond for the petitioners' complying with their undertaking. The petitioners are also cautioned that any failure to adhere to the undertaking would invite punitive measures including for contempt of Court.”