F-1 Student Visa
An F-1 student is defined at Section 101(a)(15)(F) of INA as an alien having a residence in a foreign country that he has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study. An F-1 student is an individual who wishes to enter the United States temporarily and solely for the purpose to study at an established college, university, seminary, conservatory, academic high school, elementary school or other academic institution or in a language training program in the United States. The Attorney General must approve the educational institution for admission of foreign students after consultation with the Secretary of Education. In addition, the educational institution must report to the Attorney General termination of attendance of each nonimmigrant student, and if such institution fails to make reports promptly the approval shall be withdrawn. The F-1 student status allows spouse and minor children of a student to accompany him.
Applicants for F-1 visas must demonstrate that they have no intention of immigrating to the United States. In many parts of the world, prospective students face rigorous questioning by American consular officers as to their long-term educational and career goals, the extent of their ties to their home countries, their sources of financial support and the ways they will apply their education once they return home.
A dependant spouse and unmarried children under the age of 21 of an F-1 student are granted F-2 status. An F-2 dependent may remain in the United States for the duration of the F-1 student’s stay and may engage in any lawful activity other than employment and full-time, post-secondary studies under 8 CFR 214.2(f)(15)(ii)(A). Whereas, in the past, dependents in F-2 status could study full or part time at the post-secondary level, the new SEVIS regulations specifically prohibit F-2 spouses from engaging in full-time studies at any level. A dependent child in F-2 status, on the other hand, may attend primary and secondary schools full-time but may not proceed to any post-secondary program on a full-time basis.
Only USCIS-approved institutions may issue SEVIS Form I-20, Certificate of Eligibility and Form I-538 Certification by the Designated School Official. Form I-20 certifies the admission of a student to a program of study, and, in conjunction with evidence of financial ability and unabandoned permanent residence abroad, establishes eligibility for a student visa. Schools that may be approved for attendance by F-1 students include:
A college or university, namely, an institution of higher learning that awards recognized bachelor’s, master’s, doctoral, or other professional degrees; or
A community or junior college that provides instruction in the liberal arts or in the professions and awards recognized associate degrees; or
A seminary, conservatory, academic high school, elementary school or an institution that provides language training, instruction in the liberal or final arts, in professions or in more than one of these disciplines.
To participate in the SEVIS program, schools are required to provide the name and title of the person who is to become the principal designated school official (PDSO) and each of the officials to be designated school officials (DSO), each of whom must certify having read the regulations pertaining to foreign students and affirm to comply with the immigration laws pertaining to foreign students. PDSOs and DSOs are the only individuals authorized to sign Forms I-20A and I-538, or otherwise act on behalf of the school in carrying out its responsibilities under the regulations. Under 8 CFR 214.3(k), before Form I-20 is issued to a student, a DSO will ensure that:
The I-20 is issued only to individuals who are seeking F-1 or M-1 status or are already in that status;
The prospective student has made a written application to the school;
The application, including previous school records, proof of financial responsibility, and other documents in support of the application, has been received and evaluated at the school’s location in the United States; and
Appropriate officials have determined that the applicant meets all standards for admission.
If each of these requirements is met, then the DSO will enter the information into SEVIS and submit it to USCIS, which then will authorize the issuance of the I-20 form. This information then becomes accessible to American consulates overseas, which use it to verify the validity of the I-20 when the student applies for a visa.
Change to student status in the United States and the 30-to-60-day rule
While in the United States, an alien may change his status to that of a student in certain circumstances. In this case, a potential applicant must apply for a change of nonimmigrant status on Form I-539. He must also provide the original (or certified copy thereof) Form I-94 (front and back), the original Form I-20 issued by the school, financial and other relevant supporting documentation and the required fee. In addition, it is recommended that the applicant also submit a letter explaining the reasons for requesting the change of status. The application is filed with USCIS Service Center having jurisdiction over the applicant’s place of residence. USCIS has discretionary authority to deny the application for change of status if it appears that an alien entered the United States in a non-student visa category with intent to pursue his education. Taking this into consideration, USCIS will make a determination as to whether the alien’s intent was to circumvent the normal visa process. USCIS may then deny the application for change of status, and, if so, will order the student to depart or place him in removal proceedings.
USCIS uses the “30-to-60-day” rule in determining whether an alien committed fraud during his visa application process. That is, a request for a change of status made within thirty to sixty days of arrival creates a legal presumption that the visa applicant committed fraud in the initial visa application, and the burden falls upon the alien to rebut this presumption. The denial is unavoidable if an application for change of status is made shortly after the alien’s entry into the United States. However, a denial based upon a finding of fraud may only be issued after review by the Visa Office of the DOS. USCIS will usually grant status changes requested more than sixty days after arrival. They are not generally viewed as fraudulent. An alien cannot appeal the denial of the application for change of status, which, of course will prevent him from pursuing his education in the United States.
Change from B visa to F-1 visa
If a B-1/B-2 visa holder commences studies before or during the pendency of the I-539 application, USCIS will deny the change to student status. The law does not address aliens in other visa categories who want to pursue education as F-1 visa students. This means that other visa holders may apply for a change of status to F-1 or M-1 to pursue their education.
Every foreign student is entered into the SEVIS system. Form I-20 is used to track the students’ location within the United States. I-20s are uniquely coded for each student. The student is expected to safeguard his I-20 and any subsequent such forms issued during the course of his academic studies. The bottom page of Form I-20 is used to note any endorsements for employment authorization or travel as well as provide supplemental history about the student.
F-1 students are granted a period of authorized stay defined as a “duration of status”, noted on the I-94 as “D/S”. Under 8 CFR 214.2(f)(5), the duration of status is defined as the period required to complete the program of study for an F-1/M-1 or J-1 student as indicated on the I-20, in addition to any authorized period of after the completion of practical training plus sixty days. A student who fails to complete his education within the time indicated must seek an extension before the I-20 expires, pursuant to 8 CFR 214.2(f)(7)(iii). Failure to do so will result in the student’s falling out of status, which will require filing an application for reinstatement.
An F-1 student must attend an educational institution on a full-time basis. Registration for twelve academic hours per semester is required at the undergraduate level. At the graduate level, the number of hours required for a full-time program may be dictated by the school and course of study. The DSO may allow a student a one-time reduction in number of hours of coursework for compelling reasons or during the final term if the student needs less than a full course load to graduate. If the student drops below a full course load more than once, he will be considered out of status and must seek reinstatement.
Vacation While an F-1 Student
An F-1 student is considered to be in status during the school’s annual vacation period if he intends to resume full-time studies in the next academic year. Note: If you plan to take a vacation outside the United States, then please make sure that your I-20 is properly endorsed by the DSO for reentry, as required by 8 CFR 214.2(f)(4). If there has been a substantial change in the student’s program, such as one altering an academic major, at the same school, then the DSO must issue a new I-20. If the visa has expired or there is no visa in the student’s passport, he must apply for a new F-1 in his home country. A student, however, can revalidate his F-1 visa in Mexico or Canada as long as he is not applying for a new visa and not an applicant from a country that sponsors terrorism.
If an F-1 student is not able to complete the program within the time indicated on the I-20, he may apply to the DSO for an extension at any time before the expiration date. The student will receive the extension if he 1) filed for the extension timely, 2) has continuously maintained his status, and 3) can show that there are academic or medical reasons for the extension. A student who advances to another academic level may apply for an extension of stay by notifying the DSO, who, in turn, will issue a new I-20 for the new program and start date. Once the student enrolls in the program, the school will update his I-20 by putting “transfer” on the form and then updating SEVIS.
A student may only attend the school that issued the I-20 to him. If he wants to transfer to another school, he must notify the DSO at the current school of his intent. The DSO and the student will designate a “transfer out” date. On that date, the old school will release its SEVIS records to the new one to allow it to issue a new I-20. The student may not remain in the United States while awaiting the transfer if the start date of the new school is more than five months from the program’s completion date at the previous school. Once the student reports to school, the DSO will notate on the I-20 that the transfer has been completed and update his records in SEVIS.
On campus employment is authorized for F-1 visa holders and does not require approval by USCIS. A student may work on the school’s premises for a maximum of twenty hours per week while it is in session and full time during vacation periods. No special employment authorization is required.
Off-campus employment is allowed based on severe economic hardship that is unforeseen and beyond the student’s control. Such unforeseen circumstances include loss of financial aid or on-campus employment, fluctuation in foreign currency exchange rates, theft, health problems or changes in the student’s sponsor’s financial situation. In addition, the student must be in good academic standing and attend school on a full-time basis. DSO must approve the student’s request to work off campus. DSO is also required to certify in SEVIS that the student is in good standing and attends school full time, there is insufficient employment opportunities on campus and the work will not interfere with his studies. The application must include Forms I-20, and I-765 with evidence of hardship. If USCIS approves the request, it will issue a Form I-688B (employment authorization document).
Curricular Practical Training
Curricular Practical Training (CPT) is defined as employment that is an integral part of student’s academic program. This may include an internship, cooperative education or a rotation of work and study periods. The DSO must endorse the I-20 for CPT. No special authorization is required from USCIS. To qualify for CPT, a student must have completed nine months of full-time, academic study. The DSO must endorse the I-20 and state whether the student is authorized to work part or full time. The endorsement for part-time employment allows for twenty hours of work per week and requires enrollment in school. For full-time CPT, enrollment in school is not required. An F-1 student who engages in twelve months of full-time CPT is not eligible to participate in post-graduation optional practical training (OPT), as defined below.
Optional Practical Training
OPT is available after each program level. For example, if a student completes one year of OPT after his undergraduate studies, he is eligible for twelve additional months of OPT after having completed his master’s degree, and again after the doctorate degree. OPT must relate to the student’s major area of study and be available during the course of studies, that is, while school is in session, during student’s annual vacation period and at other times when school is not in session, after obtaining a degree but before completion of a thesis or its equivalent and after the completion of the entire course. Only twelve months of OPT are permitted at each educational level. To qualify for OPT, the student must have been enrolled in school for nine consecutive months and be in F-1 status. A DSO must endorse I-20 for OPT, and the student must submit an application for employment authorization on Form I-756. This application can be filed ninety days before the completion of studies and the OPT must be completed within fourteen months of graduation from the program.
Travel While Doing OPT
F-1 students may reenter the United States if the F-1 student has a valid visa, a recently endorsed I-20 and an EAD issued for OPT provided that the student has not violated his status. Students must be very careful with international travel. If a student’s visa expires prior to reentry, he must apply for a new F-1 at a consulate. Consular officers may express concerns regarding the student’s nonimmigrant intent and deny the issuance of a new F-1 visa.
An F-1 student who violates his status may request reinstatement while in the United States by applying to a USCIS office with jurisdiction over the school at which the student intends to study. The student must show that:
the violation of status resulted from circumstances beyond his control pursuant to 8 CFR 214.2(f)(16)(i)(F);
he is currently pursing or intends to pursue a full course of study at a school, as evidenced through submission of Form I-20;
he has not engaged in unauthorized employment;
he is not deportable other than for entry without inspection or for failure to comply with the terms of F-1 status; and
he does not have a record of repeated or willful violations of USCIS’ regulations.
The reinstatement is submitted on Form I-539, together with a new I-20 from the school of intended enrollment. The student must carefully document his reasons for having fallen out of status, being sure to note that there was no unauthorized employment.