An Introduction to the F-1 Student Visa

 The U.S. has the some of the finest colleges and universities in the world.  The policy of the U.S. educational institutional is to attract the best students of diverse background from all over the world.  In order to study in American schools, a foreign student must first secure a valid visa.  Although several visa classifications allow foreign students to study in the U.S., the F-1 visa remains most popular for most foreign students.  The foreign student must first apply to an approved U.S. institution, get accepted by the school, and obtain an I-20 (Certificate of Eligibility) on the program of study, before applying for an F-1 visa.  

 Who is a F-1 Student?

An F-1 student is defined by the INA § 101(a)(15)(F) as an individual who has a residence in a foreign country which he or she has no intention of abandoning, who is a bona fide student qualified to purse a full course of study and who seeks to enter the U.S. temporarily and solely for the purpose of studying in an approved education institution.  The spouse and minor children of an F-1 student may also obtain an F-2 visa to accompany the F-1 student to stay in the U.S.  It is very important to understand that an F-1 visa is an non-immigrant visa, allowing the holder to stay in the U.S. temporarily for the specific purpose of studying and gaining relevant work experience.  The F-1 visa, if issued, is usually for the “duration of status” with no specific end date.  What it means is that a student may stay in the U.S. to complete the program of study as indicated in the I-20, plus any authorized practical training, plus 60 days.

 The Application Criteria

 As indicated above, a foreign student must establish that she has a foreign residence which she will not abandon.  As in all applications for visas, the foreigner must prove to the U.S. government that she is eligible for the visa category.  Therefore, an F-1 applicant must provide documentation to prove that she is not likely to stay in the U.S. upon completion of the study program.  Family ties, establishment in local communities, promise of jobs upon return, social status, etc., are possible evidence.  Other factors will also come into play including the person’s age, marital status, employment history, command of English, long-term plans, etc.  Secondly, the foreign must also establish that she is a bona fide student, coming to the U.S. to pursue a full time studies at an approved education institution.  Usually, this prone is not hard to satisfy as the student would have already applied for and been issued an I-20 (Certificate of Eligibility) from an approved school by the time she is applying for a student visa.  Make sure that the program and the student are registered on the SEVIS system.  Created after 911, the SEVIS system is a new integrated computer information system that tracks all F and M students and J exchange visitors worldwide and all changes in a student’s program.  Finally, the student must also establish that she has adequate financial resources to complete the program of studies. 

 Why is it difficult to obtain an F-1 Visa?

 It is not uncommon to hear stories of F-1 visa denials.  Why is it so difficult to apply for an F-1 visa?  How can one ensure that he or she will get a visa?  The reality of the fact is that hundreds of visas are issued to foreigners at the U.S. Embassies around the world every day.  It is also true that, on average, about 40% of all foreign students will eventually adjust their status to that of a lawful permanent resident (“green card”).  Every applicant is interviewed.  F-1 visas will be issued but only after the U.S. consular officer is convinced that the applicant will return to the home country.  Unfortunately, there is not a fixed formula to follow to guarantee the issuance of an F-1 visa.   Every person’s personal background, presentation, documentation, educational qualifications, etc., is different.  Although the consular officers are trained to discern discrepancies and apply objective criteria, there is also an element of subjectivity in the adjudication of each case.  Adequate preparation and documentation is always important when applying for a visa. 

 Maintaining and Changes of Status

 An F-1 student is required to maintain a full-time course of studies.  Usually, this translates to 12 academic credit hours per semester in an undergraduate studies program.  At the Graduate level, the school may define what a full-time status is.  Additionally, an F-1 student is expected to be making “normal progress” toward the stated educational goals specified in the I-20.  Under certain circumstances, the school’s Designated School Officer (DSO) may allow an F-1 student to take less than a full-time load of classes for academic reasons or health reasons.  Furthermore, an F-1 student may also take annual vacation as long as he completes the equivalent of a full academic year.  Extensions of stay may also be granted by the DSO prior to the expiration of the I-20 for compelling academic medical or academic reasons such as a change of major.  A new I-20 must be obtained for a new academic program (e.g., Master’s Degree).  Transfers to a new school would require acceptance by the new school and the issuance of a new I-20 as well. 

 Attending Elementary and Secondary Schools

 Foreign students generally may not apply for an F-1 visa to attend public elementary or secondary schools.  The only exception is that a foreign student may attend a public high school if he or she has demonstrated that he or she has reimbursed the local educational agency that administers the school for the full, unsubsidized per capita cost of providing education at such school for the period of the alien’s attendance.  Such attendance at a public high school is restricted to an aggregate of 12 months of study only.  However, a foreign student may apply for an F-1 visa to pursue a course of study at a private elementary or secondary school or in a language training program that is not publicly funded.  Any change of attendance from a private school to a public school without prior approval is considered a violation of status.  In fact, any unexcused interruption of the study program specified in the Form I-20 is considered a violation of the foreign student’s F-1 status.

 Obtaining F-1 Status in the U.S.

 The normal avenue to apply for an F-1 visa is from an overseas U.S. consulate office.  However, it is also possible for somebody to apply for F-1 status from within the U.S.  Applications from within the U.S. would be through a change of status application.  The criteria for adjudication are basically the same as those consular applications.  The crucial issue is whether the foreign student has a pre-conceived intent to study in the U.S.  For instance, there are specific regulations that govern holders of business and tourist visas (B1/B2) when they apply to change status to that of a student.  As a general rule, a foreigner who files for a change of status within a month of arrival will be presumed to harbor a pre-conceived intent to study in the U.S.  The old rule is that a foreigner may start attending school after filing for a change of status.  The current law is that such attendance will be considered a violation of the applicant’s current immigration status and is a ground for denying the status change application.  Holders of other visa categories are also subject to similar scrutiny of the immigration examiners.  In the adjudication of applications for change of status, any evidence of fraud or attempts to circumvent immigration laws will be grounds for denial. 

 Employment of F-1 Students

 F-1 Students may legally work either on-campus, off-campus, or under a practical training program.  On-campus employment refers to jobs at the school offices, libraries, laboratories, bookstores, cafeterias, etc.  As long is the student is maintaining his F-1 status, he or she may work on school premises for up to 20 hours per week while school is in session and on a full-time basis during school breaks.  No prior approval by the government is required but most school employers require proof of eligibility for such employment from the Designated School Official or Foreign Student Advisor.  “On-campus” employment is defined rather liberally, allowing graduate students, for example, to pursue employment at other affiliated institutions.  It is an excellent way for foreign students to earn money and to gain research and other professional experience.

 There are two types of practical training programs: curricular practical training (CPT) and optional practical training (OPT).  CPT generally refers to certain work/study programs jointly organized by the school and employers which are available to students before their graduation.  The employment must either be required or at least considered important for the academic program.  Unless the CPT is part of the requirement of a graduate degree program, undergraduate students need to have completed at least nine months’ full-time academic study first.  No prior approval by the USCIS is required but DSO approval and endorsement is required.  It is important to note that full-time CPT employment of 12 months or longer would render the foreign student ineligible for any post-graduation OPT.

 Foreign students are eligible for one year of OPT upon completion of each academic program.  OPT is an important not only as a tool for foreign students to obtain important on-the-job training but also as a means for graduates to extend their stay in the U.S.   For instance, a doctorate graduate may be applying for lawful permanent legal status by means of an offer of a teaching position by an educational institute.  While his green card application is pending, she can use her practical training to stay legally in the U.S. while working for this institution.  Prior USCIS approval is required for OPT as evidenced by the issuance of an employment authorization document.  It is important to note that OPT may only be commenced on the date indicated in the EAD card. 

 Off-campus employment is also possible based on “unforeseen circumstances beyond the student’s control,” requiring approval by the USCIS. 

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