The United States is one of the most popular places for foreign nationals to come to study. In the 2015 to 2016 academic year, over one million international students came to the US! Although numbers have dropped since President Trump was elected, and there are reports of foreign nationals reconsidering higher education in the US in light of the anti-immigrant rhetoric and atmosphere, many foreign nationals will still come to the US to study at our highly respected educational institutions. As I’ve written before, it’s not uncommon for certain foreign students to move onto work visas once they have completed their studies. In this post, however, we wanted to examine how exactly foreign nationals come to the US as students, and some general issues that foreign students face, including employment while in school and visas for their dependents. It may surprise some readers that there is not just one visa option for students. In fact, there are three different routes for students: F-1, M-1, and J-1. Each visa has its own set of rules concerning how it can be used and what benefits (and potential detriments) may follow.
This visa is for the academic student who wants to come to the US to be a full-time student at an accredited college, university, seminary, conservatory, academic high school, elementary school, other academic institution, or in a language training program. The student must be enrolled in a program that culminates in a degree, diploma, or certificate. Only schools certified by the Student and Exchange Visitor Program (SEVP) can enroll F-1 nonimmigrant students. A school applies for SEVP certification by completing the Form I-17 Petition for Approval of School for Attendance by Nonimmigrant Student and paying the required fees.
A full course of study is required to maintain F-1 status. This may not be reduced without obtaining permission from the university and even then may only be reduced to half the hours of a full course. Any reduction may only be requested one time unless it is for medical reasons and then only for a maximum of twelve months. F-1 students need to show sufficient financial support to pay for the tuition and room and board without having to engage in unauthorized employment. They must also be proficient in English or receive training to become proficient unless coming specifically to study English.
The procedure involved to obtain an F-1 visa begins with the educational institution issuing a Form I-20 document evidencing it has admitted the student and determined the financial support is sufficient. It also lists the length of the academic program. The student must take this document to the US Embassy/Consulate for their scheduled visa appointment. F-1 students may enter the US thirty days ahead of their program start date and have a sixty-day grace period at the end of their program. They are admitted for “duration of status” meaning that the status is controlled by the school depending on the length of their program and as indicated on the Form I-20 produced by the academic institution.
This visa is for vocational students or other nonacademic programs, other than language training. For example, this visa would be appropriate for someone pursuing a culinary school education. As with the F-1, only schools certified by SEVP can enroll M-1 students and students must be taking a full course of study unless they get approval for less due to medical reasons and only then for a maximum of five months. Online courses do not count towards a full course of study.
M-1 students may enter the US up to thirty days before their program start date and are admitted for the time necessary to complete their course plus thirty days or up to a total period of one year—whichever is less. They are only admitted to a certain date and so unlike the F-1 student they start to accumulate unlawful presence if they overstay the time allotted.
Extensions are possible but only for a maximum of three years from the date of the original entry. The M-1 student can transfer schools only in the first six months of the program unless there are circumstances beyond the student’s control and they must get US Citizenship & Immigration Services (USCIS) permission prior to transferring. They also cannot change educational objectives after arrival nor can they change status to H-1B if the basis of qualification for the H-1B is training or education received as an M-1 student. M-1s also cannot change status to F-1. The procedure for obtaining an M-1 visa is the same as for the F-1. It originates with an I-20 from the school, which the student must bring to a visa appointment at the US Embassy/Consulate.
This visa is for “exchange visitors” who intend to participate in an approved program in either teaching, training, studying, or graduate medical education. The programs are designed to promote the interchange of persons, knowledge, and skills, in the fields of education, arts, and science.
J-1 visa procedures are a bit different than the F-1 and M-1 procedures where the school provides the necessary documentation. Approval of the J-1 is controlled by the Department of State who designates public and private entities to act as exchange sponsors. The sponsoring entities then place the foreign national at a host organization in the US. Host institutions for students are typically the academic institution where the study will take place. Once the sponsor has approved the program at the host institution and provided the student with the DS-2019 approval form, the student can make an appointment at a US Embassy/Consulate abroad to obtain the J-1 visa. A student on a J-1 can enter the US up to thirty days before the program is set to begin. They also have a thirty-day “grace period” at the end of the program before they are required to leave the US.
In relation to this post, the two types of J-1s that are applicable to students are the short-term scholar program and the college and university student program. The short-term scholar program is for research scholars (and professors) to come for a short-term visit to lecture, observe, consult, train or demonstrate special skills at research institutions, museums, libraries, post-secondary accredited academic institutions, or similar. The maximum duration is six months. Since this type of J-1 is so specific and short, most students in J-1 programs will be coming under the college and university student program designation.
The other type of J-1 is the college and university student program, which is for foreign students to study at US degree-granting post-secondary accredited academic institutions or participate in a student internship program that will fulfill the educational objectives of the student’s degree program in their home country. In this type of program the student must be financed directly or indirectly by the US government, the government of their home country, international organizations of which the US is a member by treaty or statue, or by funding from any source other than personal or family funds. If students are pursuing a non-degree program they must be enrolled full-time in the prescribed course of study and the maximum duration of the program can only be twenty-four months inclusive of academic training. If pursuing a degree program, students may engage in study until completion of that degree.
One very important thing to keep in mind with J-1 visas is the two-year foreign residency requirement that often attaches to such visas. This requirement is just as it sounds—the foreign national must return to their home country for at least two years after completion of the J-1 program that is subject to the requirement, before they may apply for nonimmigrant visas, including K-1, L-1, or H-1B visas, or apply for lawful permanent residency (i.e., a Green Card). This requirement applies to anyone whose participation was financed in whole or in part, directly or indirectly by an agency of the government of the US or by the government of their nationality or last residence. It also applies to anyone who comes to the US to receive graduate medical education or training. Although not entirely-related to students, this foreign residency requirement also applies to anyone coming to train in the US whose area of training and country of citizenship/nationality appears on the Department of State’s “skills list.”
There are waivers of this two-year foreign residency requirement based on either the threat of persecution in one’s home country, exceptional hardship, a no-objection waiver from their home country, a request by a US Federal Executive Agency, or (for foreign medical graduates) special waivers for doctors working in underserved areas. The process of obtaining such a waiver is beyond the scope of this post, but needless to say, it is not always straight-forward to stay in the US beyond the J-1’s course of study should their intent change while in the US. While intent to return to one’s home country is a requirement of the F-1, M-1, and J-1, the J-1 has this added level of regulation.
SEVIS (Student and Exchange Visitor Information System)
The law requires approved F, M, and J institutions to keep computerized data on students, exchange visitors, and dependent family members through a system known as SEVIS. This is a process and requirement that was implemented after the events of September 11, 2001 in order for the government to keep track of students and make sure they are properly maintaining status. There is a small fee the student must pay to register with SEVIS and all F-1, M-1, and J-1 visa applicants must bring proof of this registration to their consular appointment or they will not be issued the visa. Under SEVIS, the educational institution where the student will be studying must report when the student commences a full course of study, fails to report within thirty days of the registration deadline, drops below a full course of study, transfers schools, extends stay, is reinstated to status, or engages in employment (on-campus employment does not need to be reported to SEVIS).
With limited exception, F-1 students may not work off-campus during the first academic year. They can work on-campus subject to certain conditions and restrictions. After the first academic year, F-1 students are authorized to work in two types of off-campus employment: Curricular Practice Training (CPT) and Optional Practical Training (OPT).
M-1 students are authorized for practical training only after they have completed their studies. For both F-1 and M-1 students any off-campus employment must be related to their area of study and must be authorized by the educational institution prior to starting work.
Employment for J-1 visa holders is authorized only under the terms of the exchange program and thus it will be up to the sponsoring agency to decide. Some J-1s coming in a program designated as training are authorized to work/train for their host company upon entry but J-1 students may not have the same permission and it is up to the academic institution to decide. Many students are authorized by their academic institution to engage in part-time employment under certain conditions including good academic standing. Students may participate in academic training with or without wages or other remuneration during their studies with the approval of the academic dean and the responsible officer at their sponsor organization.
F-1 dependents (meaning spouses and unmarried children under twenty-one) can obtain F-2 visas and M-1 dependents can obtain M-2 visas. Both types of dependents must obtain their own I-20’s (issued by the F-1/M-1’s school). Neither can obtain work authorization.
J-1 dependents are entitled to J-2 classification and are entitled to work authorization—meaning they can submit a form I-765 application for a “work card.” However, every J-1 has to show that their savings or income earned while on the J-1 will financially support them while in the US. (Basically, it’s their burden to prove they will have enough money to pay for room, board, and necessities while in the US.) This burden is not reduced by the fact that the J-2 earns income. J-1 applicants must be able to show that even without the J-2’s income, the J-1 applicants can afford to support themselves.
Clearly, all student visas are not created equally and a potential student should really examine the ins and outs of the visa for which they would be applying so that they are fully equipped with the knowledge of what they can and can’t do on that visa. A foreign student advisor at any educational institution that issues I-20s or DS-2019s is often the best person to advise on the student visa and help with its issuance. Of course, attorneys can help as well. Ultimately, for many people, coming to the US to study is a dream and it’s good to know that there are three different options that may be available to pursue that dream.
UPDATE JUNE 15, 2018: USCIS reminds F-1 students on Optional Practical Training (OPT) that transferring to another school or beginning study at another educational level (for example, starting a master’s program after obtaining a bachelor’s degree) automatically terminates their OPT as well as their corresponding employment authorization document (EAD). That said, students in "F-1 status will not be otherwise affected as long as they comply with all requirements for maintaining their student status."