1. General Requirements
Foreign nationals may enter the United States as nonimmigrant in order to engage in academic studies in this country, subject to certain restrictions. These students, who can range from elementary school students to doctoral candidates and persons engaged in postdoctoral studies, are classified in the F visa category. Sec 101(a) (15) (F) of the INA, 8 U.S.C.A. Sec 1101(a) (15) (F).
Students in vocational or nonacademic programs at one time were included in the F category, but since 1982 have been admitted only in the M visa category. This category, with much greater limitations than are placed on the F category, is not discussed here. Students in academic programs can also be admitted to the U.S. in the J visa category for exchange visitors, if the school sponsors an exchange visitor program recognized by the U.S. Department of State. Many schools have such programs. The J visa category has a major disadvantage for some students: if the program is funded in whole or in part by the student’s government or the U.S. government, the student may be subject to a requirement that he or she return to his or her home country for two years before being permitted to return permanently to the United States or to return temporarily to work in the H or L nonimmigrant categories.
As long as F-1 students are bonafide nonimmigrants, they can pursue their academic goals in the U.S. without regard to the availability of similar training in their own country, and can remain here for many years in order to complete a full academic program. They may even engage in a specific period of practical training after completion of their studies as long as the training would not be available in their own country.
2. Duration of Stay
Unlike most other nonimmigrant who are given a definite period of stay in the United States, foreign students are permitted to remain in the U.S. for the “duration of status.” Duration of status means that a student remains in valid status during enrollment in any number of academic programs (e.g., high school followed by college followed by master’s degree), plus any periods of authorized practical training, and a 60-day grace period to depart the U.S.
Several years ago, the Immigration Service adopted rules that eliminated completely the extension of stay application for foreign students. Under the rules, the student remains in valid status as long as he or she has not exceeded the estimated program completion date inserted by the designated school official on the student’s Form I-20; that date, in turn, can be an estimate based on the time an average foreign student would need to complete a similar program in the same discipline, and can include a grace period of up to one year. If a student completes the program by the estimated completion date, he or she can advance to the next academic level without requesting an extension from the USCIS, and remain in statement of student status.
Reinstatement requires that the student show that the violation of status was due to circumstances beyond the student’s control or that the student would suffer “extreme hardship” if he or she is not reinstated.
3. Application Process
The foreign national seeking to enter the United States to study does not need any advance permission from the Immigration Service. The student must obtain a certificate of eligibility (Form I-20) from the academic institution at which he or she will enroll, and submit this certificate, together with a nonimmigrant visa application and supporting documentation, to a U.S. consulate in the alien’s home country. Once the visa is issued, the student can apply at the border for admission to the U.S., the same as any nonimmigrant. A prospective student already in the U.S. in a different nonimmigrant status may apply to the USCIS to change to student status to undertake studies here. Such changes are often viewed skeptically by immigration officers, however, based on their suspicion that the alien intended to engage in studies when he or she entered the U.S. in the different category.
4. Special Conditions
Foreign students must be enrolled in a full course of study, not part-time studies (although a limited exception exists for certain border commuter students). They must also demonstrate prior to the granting of a visa that they have sufficient means of support to cover them through their full academic program. Authorization to work because of financial need is granted to students in only the most limited circumstances. Other limited employment opportunities are also available to students. Although the spouses and family members of students may enter the U.S. with the principal student in the F-2 visa category, under no circumstances may they be granted permission to work. Unlike some students who enter in an exchange-visitor program sponsored by their school (J-1 status), F-1 students are not subject to any special requirement to return to their home countries for two years prior to accepting employment here as a nonimmigrant or prior to immigrating.
IIRIRA imposes special restrictions on the granting of F-1 status to attend public schools. Note the following:
- An alien cannot be granted F-1 status in order to pursue a course of study at a public elementary school or in a publicly funded adult education program.
- An alien cannot be granted F-1 status to attend a public secondary school unless the alien reimburses the school for the full, unsubsidized per capita cost of his or her education, and the alien intends to remains at the school in such status for no more than a year.
- An alien who obtains an F-1 visa to attend a private elementary school, or a language training program that is not publicly funded, may not transfer into a publicly funded elementary school, a publicly funded adult education program, or a publicly funded adult education language training program.
- An alien who obtains an F-1 visa to attend a private secondary school may not transfer into a publicly funded secondary school unless the alien intends to remain at the school in such status for no more than a year, and the alien reimburses the school for the full, unsubsidized per capita cost of his or her education.
A student who obtained F-1 status to attend a private school and transfers into a public school or a publicly funded adult education program as prohibited by the new law is considered to be in violation of status and is therefore subject to removal. In addition, such an alien is inadmissible until he or she has remained outside of the United States for a continuous period of live years. These changes went into effect on November 30, 1996.
5. Family Members of the F-1 Student
Family members of the foreign students may enter the U.S. in the F-2 visa category. Eligible family members include the spouse and minor children of the F-1 student. A minor is a person under 21 years of age. Keep in mind that each family member must present a Certificate of Eligibility issued in his or her own name under new rules issued in December 2002. A new form is required for a dependent when there has been any substantive change in the F-1 student’s current information.
Although the spouses and family members of students may enter the U.S. with the principal student in the F-2 visa category, under no circumstances may they be granted permission to work. The F-2 spouse may not engage in full-time study, and the F-2 child may only engage in full time study if the student is in an elementary or secondary school.
The spouse may engage in study that is a vocational or recreational in nature. A failure to abide by these restrictions may result in a finding of a violation of status and may lead to the dependent’s removal.
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