Delhi HC Tells Centre To Allow Brothers Pursue Higher Studies In US Without J-1 Visa [Read Order]

Clearing the roadblock for two brothers who aspired to pursue higher education from a foreign university but for visa tussle, the Delhi High Court has directed the Centre to process their application for disbursement of scholarship without insisting on them obtaining a J-1 visa, which provides for a mandatory two-year home country stay on completion of the course.

Justice Vibhu Bakhru asked the Centre to not insist for J-1 visa as the university in the US, they had secured admission in, provided only for F-1 visa.

The court also directed the brothers – Gaurav Deep and Varun Deep - to give an undertaking that they would not apply for change of F-1 visa status after proceeding to the US.

In the instant case, the Ministry of Social Justice and Empowerment advertised a scholarship programme (Scheme of National Overseas Scholarship for Scheduled Castes (SC) etc. candidates) for sponsoring students from Scheduled Castes, De-notified, Nomadic and Semi-Nomadic Tribes, Landless Agricultural Labourers and Traditional Artisans categories for studies in specified fields in universities abroad.

The public advertisement was issued on February 22, 2016, inviting applications from eligible candidates for the purposes of providing scholarship for pursuing master’s level course and PhD abroad.

The petitioners had completed a degree course of BTech in Information Technology and applied under the scheme. They simultaneously took steps to secure an admission with the Auburn University, US, for pursuing a 28-month course of Master’s in Software Engineering.

They obtained the scholarship and admission in Auburn, but the controversy erupted as the Government of India insisted that the candidate is required to obtain only J-1 visa, if applying for admission in any university in the US. If not, then he or she may fund the studies personally.

The university, on the other hand, maintained that since they were applying for a degree programme, it made them eligible for an F-1 visa.

The material difference between ‘F-1 visa’ and ‘J-1 visa’ is that there is scope to change the status from ‘F-1 visa’ to other visas, which is impermissible in case of J-1 visa. Thus, it is theoretically possible for the petitioners to not to return India after completion of their course and obtain another visa. This option is not available in case of J-1 visa, which mandatorily requires the students to return back to their home country for at least for a period of two years.

The brothers then approached the Delhi High Court through advocate and social activist Ashok Agarwal, who prayed the court that they be allowed to proceed to the US on F- 1 visa.

The Centre drew the attention of the Court to a letter dated 28.11.2016, sent by the Indian Ambassador at Washington indicating that it was not possible to ensure the return of students who had proceeded on an F-1 visa.

The Centre also submitted that certain audit objections had also been raised with regard to scholarships paid to certain students who had travelled to the US but had not returned to India as required.

Agarwal told the court that the petitioners would have no objection in giving an undertaking to the effect that they would not apply for change in status of their visa and would return to India on completion of their master’s programme.

He also submitted that the specific condition requiring candidates proceeding to the US to obtain J-1 visa was only introduced subsequently and there was no such requirement under the scheme as initially advertised, on the basis of which, the petitioners had taken steps to apply for admission overseas.

“Having heard the learned counsel for the parties, it is apparent that the petitioners have proceeded on the basis of the original scheme, which required them to obtain a Visa that would require them to return to India after completion of the course. As observed, an F-1 Visa would also comply with the aforesaid condition as the petitioners would not be permitted to stay in USA on an F-1 Visa after they had completed their course.

“The petitioners have acted in terms of the said scheme and spent a considerable amount of effort in securing admission to the Auburn University. In these peculiar circumstances, this Court is of the view that the concern of the respondents could be addressed by directing the petitioners to submit an undertaking to this Court that the petitioners would not apply for change of F-1 Visa status after proceeding to the USA. The petitioners would also ensure that a personal security bond is furnished by a surety in this regard,” Justice Bakhru 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 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,” he ordered.

Read the Order Here