[Note: This is a general discussion of F-1 visas. For more detailed information on specific issues involving student visas, we suggest you scan some of the “University Corner” articles in back issues of Siskind’s Immigration Bulletin. Archived issues are available on the World Wide Web at http://visalaw.wpengine.com/~gsiskind/).]

The Immigration and Nationality Act permits persons seeking to study in the US, from elementary school students all they up to those engaged in postdoctoral studies, to apply for an F-1 non-immigrant visa. To qualify in student status, an applicant must meet a number of criteria:

  • the applicant can show he or she is a bona fide student coming to the US to pursue a full course of studies. A full course of studies means the following:
    • postgraduate studies – a program certified by the university as a full course of study. Programs lasting more than three years will be closely scrutinized.
    • undergraduate studies – normally 12 semester hours per term
    • post-secondary non-vocational – 12 semester hours
    • primary or academic high school
  • the student is enrolling in an “established institution of higher learning or other recognized place of study in the United States.”
  • the institution where the student will enroll has been approved by the US government
  • the applicant must be proficient in English or first enroll in an English language program in the US
  • the applicant has a foreign residence that the applicant has no intentions of abandoning and must intend to leave the US upon completing his or her studies.
  • the applicant must demonstrate adequate financial support which is defined to mean that “the applicant is required to establish the unlikelihood of becoming a public charge … and of resorting to unauthorized US employment to maintain solvency.”

 

The process for receiving a student visa normally involves two steps. First, the student must receive an I-20A-B Form from his or her school. The student must then proceed with processing at a US consulate (if the student is outside the US) or apply for a change of status with the Immigration and Naturalization Service (if the student is already in the US legally in another non-immigrant status). The application to the US consulate should include Form OF-156 (the standard non-immigrant visa application), the student’s passport, two photographs of the applicant, application fee (varies from country to country), and supporting documentation regarding financial resources and non-immigrant intent. Upon entry to the US, the student is normally issued an arrival/departure document allowing the student to remain in the US lawfully for the duration of the student’s studies (hence the I-94 is marked with the initials “DS” next to the expiration date).

If the applicant is applying for a change of status to F-1 student status from within the US, the student needs to submit to INS Form I-539, Form I-20A-B, the supporting documentation showing non-immigrant intent and financial support, a filing fee of and a copy of Form I-94 (the arrival-departure document given to the applicant at the time of entry to the US). One note of caution: the INS is extremely reluctant to approve change of status applications for persons switching from B visitor visa status to an F-1 visa unless the applicant informed the consulate that he or she intended to apply to change status in the US (in this case, the consulate will often issue a B-2 visa stating that the applicant is a “prospective student- school not yet chosen”). The student will be expected to present a strong case that he or she did not originally intend to come to the US to study.

There are a number of types of documents and evidence that can be presented to show a student’s financial resources. They include the following:

  • financial aid statement from the school
  • financial aid from the private groups or organizations
  • funding from the student’s home country government or university
  • family assets
  • the student’s personal assets

 

To show non-immigrant intent, there are also a variety of types of evidence that can be persuasive:

  • proof of close family members remaining in the applicant’s home country (letters from family members, proof that family members are not likely to leave the home country (such as letters from employers or proof of a long-standing family business), proof of family financial holdings, etc.)
  • documents of assets held in the applicant’s home country
  • proof of career opportunities in the applicant’s home country (letters from prospective employers can be very helpful)
  • proof of strong community involvement in the applicant’s home country (proof of memberships and affiliations should be submitted).
  • an affidavit or letter from the applicant showing how studying in the US will present better opportunities for the applicant in the home country.
  • proof that the applicant is obligated by his or her government, either by contract or by a posted bond, to return home upon completion of studies.

 

A student’s spouse and children may be able to accompany the student on an F-2 visa. Consulates will often deny petitions for family members, especially when the applicant is from a country with a high visa refusal rate. The consular officer may believe the prospects for the applicant returning home are greater if the spouse is left behind.

Students are permitted to work under very limited circumstances. Part-time employment on campus is relatively easy to obtain, but is limited to just 20 hours per week. Off-campus employment is permissible if there are unforeseen severe economic circumstances presented to the student. Supporting documentation and the support of the foreign student advisor will be needed. Curricular Practical Training is available if an internship or work requirement is a required part of a student’s curriculum. To apply for curricular practical training, the student must submit Form I-538 and Form I-20 to the school’s foreign student advisor. Optional pre- and post-graduation practical training are also available to the student for a total period of twelve months. Time spent in pre-graduation practical training will be counted against the twelve months of available post-graduation practical training. Practical training is not available to students in language training programs and the student will not be given a new twelve month practical training period if the student goes on to pursue a higher degree. The student can apply for practical training by first giving the foreign student advisor Form I-538 and I-20 for the advisor’s recommendation and then submitting Form I-765 with the regional INS office.

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Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk. The information provided in this article has not been updated since its original posting and you should not rely on it until you consult counsel to determine if the content is still valid. We keep older articles online because it helps in the understanding of the development of immigration law.

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