How do I obtain a student visa?
Foreign students seeking to study in the U.S. may enter in the F-1 or M-1 category provided the student: (1) is enrolled in a full-time academic educational program, a language training program or a vocational program; (2) is able to speak English or be enrolled in English classes teaching English proficiency; (3) has funds to pay tuition, rent, and expenses for the entire course/program of study; (4) prove that the student still has a permanent residence outside the U.S. which s/he intends to return to after the completion of studies in the U.S.
An F-1 visa is for a student enrolled in an academic or language program. An M-1 visa is for a student enrolled in a vocational, job-training program. Either visa is valid for the duration of the student’s program, as long as the student remains enrolled and actively attending classes. This status is called “duration of status” or D/S on your I-94 (white card issued for your passport when you enter on a student visa).
What if I am already in the U.S. on a different type of visa (like a visitor’s visa)? Can I change my status to that of a student visa holder or must I exit the U.S. and apply for a student visa at a consulate outside the U.S.?
Technically, if you had the intent to become a student visa holder by attending school in the U.S., then you should have applied for a student visa abroad and entered with that visa. The other acceptable route is to notify the consulate abroad that you are likely to be looking into schools in the U.S. and are a prospective U.S. student. The port of entry officer would then stamp your I-94 with the words “prospective student” which would make it easier for you to change your status.
Even if you entered on a visitor’s visa, though, you still may be able to change your status to that of a student visa holder while remaining in the U.S. as long as you do not start the educational program until the change of status is approved by CIS and you remain in valid status on your visitor’s visa the entire time your change of status is pending or your application will be denied and you will have to apply for a F-1 or M-1 at a consulate abroad. This is a very discretionary decision by a CIS reviewing officer as to your intent upon entry into the U.S. If the officer believes that you had every intent on becoming a student but tried to evade U.S. immigration law processing times for student visas by entering on a visitor’s visa instead, then a change of status will not be approved. Further, if the officer believes that you are only applying to be a student to buy yourself more time to stay in the U.S. but have no real reason to be enrolled in the program, then the application for change of status will be denied. These and other factors, once reviewed with an immigration attorney, should be taken into account in determining whether change of status as opposed to consular processing is the right choice for your case.
Can I work on a student visa?
Students cannot work during their first year of the academic program. The only exception to this rule is for students who can demonstrate an economic hardship/need to be able to work. If this is shown, CIS can allow the student to work on campus for no more than 20 hours a week during the first academic year.
F-1 students may not work on-campus more than 30 days prior to the actual start date of classes, for those F-1s making their first F-1 entry to the U.S. Transferring F-1s cannot work on-campus until the receiving school has SEVIS jurisdiction over the student?s SEVIS records.
Optional Practical Training
F-1 students now become eligible for a new one-year period of work authorization to receive practical training in their field for a year after the educational program ends/is completed. This is called “Optional Practical Training.” The student must apply for OPT and an EAD (employment authorization document known as a “work permit”) to be able to use the OPT granted, if approved.
A student can gain another 1 year of “OPT” when a student changes to a higher educational level, such as a master’s degree program. Under the new rules, a student could receive one year of OPT upon completing a Bachelors, then get an additional one year OPT for Masters, and then, if the student newly enrolls in a Doctoral program, the F-1 can get a third year of post completion OPT once the Ph.D. is completed.
Post completion OPT must be requested prior to the completion of the course requirements or prior to the completion of the course of study. For students requesting summer vacation OPT after the first year of study, the application to the BCIS (after school approval of the student?s request for OPT) may be made up to 90 days prior to the completion of the first academic year.
Despite the electronic SEVIS records, and the school’s obligation to verify work and home addresses during OPT as well as dates of OPT in the Department of Homeland Security’s SEVIS records, an EAD card still must be requested and obtained before OPT can commence.
A student in OPT remains in F-1 status and therefore the school is required to update in SEVIS any name, address or employment changes during OPT. The term “employment changes” should not be construed to mean that the student must first get permission from the school or INS prior to changing OPT jobs or employers
What options does my spouse or family member have on an F-2?
F-2 dependents may not be enrolled full-time in a degree granting course of post-secondary study. F-2 dependents may be enrolled in elementary and secondary school or any avocational or recreational studies. There is no grandfathering of current F-2s enrolled in college, and all such F-2s must apply for a change of status to F-1 by March 11, 2003.
If I move, do I have to tell CIS?
Yes. The address change registration required by INA 265 (8 CFR 265.1) is satisfied by SEVIS notification within 10 days (even though the school is not required to update SEVIS data until 21 days after the change), but address changes for students registered under Special Registration (NSEERS) still must be filed separately on the Special AR-11, in addition to SEVIS.
Can I take a reduced Course Load if I need to?
A student can only take a reduced course load to maintain F-1 status if the students gets prior approval by the school and includes at least six semester or quarter hours, or half the clock hours required for a full course of study. A reduced course load for less than half time is only acceptable for defined medical reasons (214.2(f)(6)(iii)(B)) or for the final term of study if the school determines that fewer courses are needed to complete the course of study (214.2(f)(6)(iii)(C)).
What happens if I can’t continue my program or fail to attend class?
The school must report the following within 21 days: failure to maintain F-1 status or complete educational program, change in address or name, graduation early or prior to program end date on SEVIS I-20, disciplinary action taken by school. Each semester and no later than 30 days after the deadline for class registration, schools must report the following: whether the F-1 student has enrolled, identification of any F-1 student who has dropped below a full course of study without authorization, the current address of the F-1 student.
Is there anyway to reinstate my student visa status, after I’ve lost it?
The new rule changes the legal standards for applications for reinstatement of student status. Now, the student must apply for reinstatement not more than 5 months after being out of status. Or, if the application is outside of the 5-month limit, the student must establish that failure to timely file was the result of exceptional circumstances. To have a reinstatement approved, the student must show either that the violation of status resulted from circumstances beyond the student’s control or that the violation relates to a reduction in the student’s course load that would have been within a Designated School Official’s power to authorize and that failure to approve reinstatement would result in extreme hardship to the student.
F-1 students in possession of a valid I-20 Certificate of Eligibility may still utilize such document to be admitted to the U.S. prior to August 1, 2003, as long as the I-20 form was issued prior to January 30, 2003. All F-1 students must be entered into SEVIS (Student and Exchange Visitor Information System) and issued SEVIS I-20s no later than August 1, 2003. Students may be admitted under the new rule no more than 30 days prior to the start of classes. Formerly, the student could be admitted 60 days prior to the start date.
Students who have completed their course of study and any authorized practical training have a 60-day grace period after expiration of F-1 status. The 60 days run from the end date of the completion of the course of study or the end date of any authorized practical training, whichever is later. F-1 students who obtain authorization from their school to withdraw from school receive a 15-day grace period. Under the new rules, grace periods explicitly do not apply in any other circumstance.
Program Completion Date
Schools can no longer allow a grace period of up to one year to the program completion date.
A program extension must be requested by the student prior to the end date on the I-20. Any student who is unable to complete the educational program before the end date on the I-20, and does not request a program extension prior to the end date on the I-20, is out of status.
What happens to my F-1 or OPT if I’ve applied for an H-1B but there are no H-1B visas available until after my F-1 or OPT expires?
The U.S. Citizenship and Immigration Services (CIS) extends the duration of status of F students and J exchange visitor students who have applied for change of status to H-1B but whose status expires before October 1, 2004. The notice extends their status if the CIS received a timely-filed request for change of status to H-1B by Friday, July 30, 2004, with a start date of no later than October 1, 2004. For the student to qualify under the terms of the notice, the H-1B petition must have been filed before the nonimmigrant’s authorized stay expired.
The notice also applies to F-2 and J-2 dependents. It does not, however, apply to J-1 exchange visitors other than students, as defined in 22 C.F.R. § 62.4(a). Nor does it apply to J-1 students who are subject to the two-year home residence requirement.
The extension allows Fs and Js to legally stay in the United States until October 1, but they cannot work for their H-1B employer before that date unless they have some other sort of work authorization that allows them to do so. If the H-1B petition is still pending as of October 1, they will no longer be in valid nonimmigrant status, but they will not be accumulating unlawful presence. If the CIS denies the H-1B petition after October 1, two things may happen. If the student still has time remaining on his or her 60-day (F-1) or 30-day (J-1) grace period, they can complete that grace period. If, however, their grace period has already expired when the CIS denies the H-1B petition, the F or J student’s status will terminate as of the date of the denial and they will be expected to leave the country immediately.
The notice does not address what the CIS will do about change of status requests that have already been denied. The American Immigration Lawyers Association is seeking further guidance from the CIS on that point.
The notice is fairly limited. For example, the H-1B petition must be received by the CIS (not filed) by July 30. Since it can take a CIS service center several days to receipt in a case, this means that there is only a short window of time to file an H-1B petition if one has not been filed already. For that reason the notice really only benefits H-1B petitions that have already been filed and are currently pending.
Note also the notice only benefits J students, not other categories of Js such as professors and research scholars. It is unclear why the notice excludes Js other than students.
Note also the cut-off date of July 30, 60 days before October 1. F-1 students already have a grace period of 60 days after their practical training expires before they have to leave the United States. 8 C.F.R. § 214.2(f)(5)(iv). Therefore, if an F-1 student’s practical training is due to expire August 1 or later, there is no need for them to use the new notice; they will continue to maintain status until October 1 anyway (unless they work during the grace period or do something else that makes them deportable). The July 30 cut-off date in the notice does benefit J-1 students, since they normally only have a 30-day grace period after their status expires in which to leave the United States. 8 C.F.R. § 214.2(j)(1)(ii).
The notice does not define what constitutes a “timely filed” change of status request. Must the change of status request be filed before a student’s optional practical training or academic training expires? Or will the change of status request still be timely if it is filed during the student’s 30- or 60-day grace period? Practical experience suggests that most CIS service centers will accept and approve change of status requests filed during a student’s grace period. But there is no definitive CIS answer on this issue.
The notice also states that F and J students and their family members may not travel pursuant to the notice. If they do, they will have to consular process to return to the United States. That will affect students who had planned to travel home after their status expired, receive an H-1B visa, and return to the United States just before October 1 to start work for their H-1B employer.
Overall, the extension benefits F and J students whose status would normally expire before October 1, who have an employer willing to sponsor them for H-1B, and who can get that petition filed (and received !) before July 30. The extension does not help Fs and Js who are still looking for an H-1B job.
Information Posted on AILA InfoNet at Doc. No. 04072362 (July 23, 2004).
The above information is general in nature and is not intended to be considered or relied upon as legal advice. You should always consult an attorney to determine if what immigration options are available to you and to determine how any recent changes in the law could affect your situation.
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