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The Immigration and Nationality Act provides two non-immigrant visa categories for persons wishing to study in the United States. The “F” visa is for academic studies, and the “M” visa is for nonacademic or vocational studies.
Changes in U.S. immigration law, effective November 30, 1996, require that no alien may be issued an F-1 visa to attend a U.S. public elementary or middle school (K-8). Any alien who wishes to attend public high school (grades 9-12) in the United States in student visa (F-1) status must submit evidence that the local school district has been reimbursed in advance for the unsubsidized per capita cost of the education. Also, attendance at U.S. public high schools cannot exceed a total of 12 months. Please note that these changes do not affect other visa categories such as the J-1 exchange visitor program or the qualified school-age child of an alien who holds another type of nonimmigrant visa (i.e., A, E, H, I, L, etc.). No alien may be issued an F-1 visa in order to attend a publicly-funded adult education program.
The student visa applicant must have successfully completed a course of study normally required for enrollment. The student, unless coming to participate exclusively in an English language training program, must either be sufficiently proficient in English to pursue the intended course of study, or the school must have made special arrangements for English language courses or teach the course in the student’s native language.
Applicants must also prove that sufficient funds are or will be available from an identified and reliable financial source to defray all living and school expenses during the entire period of anticipated study in the United States. Specifically, applicants must prove they have enough readily available funds to meet all expenses for the first year of study, and that adequate funds will be available for each subsequent year of study. The M-1 student visa applicants must have evidence that sufficient funds are immediately available to pay all tuition and living costs for the entire period of intended stay.
An applicant coming to the United States to study must be accepted for a full course of study by an educational institution approved by the Immigration and Naturalization Service (INS). The institution must send to the applicant a Form I-20A-B, Certificate of Eligibility for Nonimmigrant (F-1) Student Status for Academic and Language Students. The nonacademic or vocational institution must send to the student a Form I-20M-N, Certificate of Eligibility for Nonimmigrant (M-1) Student Status For Vocational Students. Educational institutions obtain Forms I-20A-B and I-20M-N from the INS.
Visa Ineligibility / Waiver
The nonimmigrant visa application Form OF-156 lists classes of persons who are ineligible under U.S. law to receive visas. In some instances an applicant who is ineligible, but who is otherwise properly classifiable as a student, may apply for a waiver of ineligibility and be issued a visa if the waiver is approved.
Applying for a Student Visa
Applicants for student visas should generally apply at the U.S. Embassy or Consulate with jurisdiction over their place of permanent residence. Although visa applicants may apply at any U.S. consular office abroad, it may be more difficult to qualify for the visa outside the country of permanent residence.
Each applicant for a student visa must pay a nonrefundable US$45 application fee and submit:
- An application Form OF-156, completed and signed. Blank forms are available without charge at all U.S. consular offices;
- A passport valid for travel to the United States and with a validity date at least six months beyond the applicant’s intended period of stay in the United States. If more than one person is included in the passport, each person desiring a visa must make an application;
- One photograph 1 and 1/2 inches square (37x37mm) for each applicant, showing full face, without head covering, against a light background; and
- For the “F” applicant, a Form I-20A-B. For the “M” applicant, a Form I-20M-N.
- Evidence of sufficient funds.
Student visa applicants must establish to the satisfaction of the consular officer that they have binding ties to a residence in a foreign country which they have no intention of abandoning, and that they will depart the United States when they have completed their studies. It is impossible to specify the exact form the evidence should take since applicants’ circumstances vary greatly.
U.S. Port of Entry
Applicants should be aware that a visa does not guarantee entry into the United States. The INS has authority to deny admission. Also, the period for which the bearer of a student visa is authorized to remain in the United States is determined by the INS, not the consular officer. At the port of entry, an INS official validates Form I-94, Record of Arrival-Departure, which notes the length of stay permitted.
An F-1 student may not accept off-campus employment at any time during the first year of study; however, the INS may grant permission to accept off-campus employment after one year. F-1 students may accept on-campus employment from the school without INS permission. Except for temporary employment for practical training, an M-1 student may not accept employment.
A spouse and unmarried, minor children may also be classified for a nonimmigrant visa to accompany or follow the student. Family members must meet all visa eligibility requirements, including evidence that they will have sufficient funds for their support, and that they will depart the U.S. when the student’s program ends. Spouses and children of students may not accept employment at any time.
Summary of new F-1 regulations effective January 1, 2003
On December 11, 2002, the then-INS published a final rule titled “Retention and Reporting of Information for F, J, and M Nonimmigrants; Student and Exchange Visitor Information System (SEVIS)”. The rule took effect on January 1, 2003. Although widely noted as the rule implementing SEVIS, this Federal Register entry also made a number of changes in how students maintain and reinstate status, how and when they can obtain practical training authorization, and a number of other issues. Below is a summary, prepared by AILA’s 2002-2003 Students Committee, of the key changes affecting students.
1. Optional Practical Training 214.2(f)(10)
F-1 students now become eligible for a new one-year period of post completion optional practical training (“OPT”) when a student changes to a higher educational level. 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.
2. Request for Practical Training 214.2(f)(10)(ii)(C)
The new rule specifies that 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.
3. OPT Procedures under SEVIS 214.2(f)(10)(ii)(E); 214.2(f)(12)
The new rule establishes that, 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.
4. Dependents 214.2(f)(15)(ii)
The new rule states that 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.
5. Name and Address Registration 214.2(f)(17)
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.
6. SEVIS F-1 Obligations 214.3(g)
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.
7. Education Privacy 214.1(h)
The new rule implements 641(c)(2) of IIRIRA waiving FERPA (Family Educational Rights and Privacy Act) for purposes of the school information that is required to be collected under 214.3(g).
8. Admission Procedures 214.2(f)(1); 214.2(f)(5)(i)
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.
9. Reinstatement of Status 214.2(f)(16)
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.
10. Grace Periods 214.2(f)(5)(iv)
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.
11. Reduced Course Load 214.2(f)(6)(iii)
The new rule establishes that a reduced course load is only acceptable to maintain F-1 status if it is subject to 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)).
12. Program Completion Date 214.2(f)(7)(ii)
The new rule eliminates the ability of schools to allow a grace period of up to one year to the program completion date.
13. Program Extension 214.2(f)(7)(iii)
The new rule requires that 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.
14. On Campus Employment 214.2(f)(9)(i)
The new rule establishes that 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. Under the new rule, transferring F-1s cannot work on-campus until the receiving school has SEVIS jurisdiction over the student’s SEVIS records.
15. Wage and Labor Attestation Program 214.2(f)(9)(ii)
The final rule confirms that the wage and labor attestation pilot program is now defunct by removing references to it in the regulations.