Non-Immigrant Visas: F-1 Visa

The F-1 visa is designed to allow temporary entry for a principal alien intending to pursue a full course of study, at a school approved by the Attorney General.

Issuance of an F-1 visa is determined by eligibility with the prospective school. Ordinarily this entails an adequate understanding of the English language and the school determines if the student intends to undertake a full course of study and is qualified to do so. Once the student is determined acceptable, the school issues a Certificate of Eligibility (Form I-20A) certifying that the student meets all the standards of admission and has been accepted for a full course of study. The designated school official signs and certifies the certificate on its face. The Form I-20A is needed for presentation at the consulate along with proof of financial status and nonimmigrant intent.

For purposes of clarification, “full course of study” is defined as:

1. Postgraduate study or postdoctoral study or research at a college or university, or undergraduate or postgraduate study at a conservatory or religious seminary, certified by a designated school official as a full course of study.
2. Undergraduate study at a college or university, certified by a designated school official to consist of at least 12 semester or quarter hours of instruction per academic term, except when the student needs a lesser course load to complete the course of study during the current term.
3. Study for at least 12 hours weekly, or its equivalent, in a postsecondary language, liberal arts, fine arts or other nonvocational program at a school that confers associate or other degrees or whose credits are accepted unconditionally by at least three institutions of higher learning.
4. Study in any other language, liberal arts, fine arts, or other nonvocational training program, certified by a designated school official to consist of at least 18 hours of classroom attendance a week if the dominant feature of the course is classroom attendance and 22 hours weekly if the dominant feature is laboratory work.
5. Study in a primary or secondary school for not less than the minimum number of hours prescribed by the school for normal progress toward graduation.

Key Points

• An F-1 visa is issued for “duration of status” and designated school officials supervise the stay.
  
  
• Spouses and minor children under 21 years of age may be entitled to remain in the United States for the duration of the F-1 visa holders authorized stay. They are issued F-2 visas and are not permitted to work but may attend school.
  
  
• In 1996, Congress placed new limits on elementary and secondary school students in F-1 status on or after November 30, 1996. INA §214(l) bars F-1 nonimmigrant student status for an alien who seeks to attend a public elementary school or a publicly funded adult education program. It also prohibits aliens from attending a public secondary school in F-1 status unless the aggregate period of F-1 status does not exceed a year and the alien reimburses the school for the “full, unsubsidized per capita cost” of providing that education.
  
  
• An alien who obtains an F-1 visa to attend a private school is deemed to have violated that status if he/she then transfers to a public school unless the student meets the above time limit and cost conditions. F-1s in private elementary or secondary schools who violate their status under this provision are inadmissible until they have been outside the United States for a period of five (5) years. This law does not affect the transfer from high school to post-secondary institutions for F-1s who are in status.
  
  The new law also does not affect nonimmigrant dependent children (i.e. F-2, H-4, L-2, R-2, etc). The bar is only on the principal alien’s F-1 status. Ironically, the new law also does not affect undocumented alien children attending public school. The Supreme Court upholds their right to education under the equal protection clause of the Fourteenth Amendment.

Optional Practical Training & Curricular Practical Training

Foreign students who enter the U.S. as bona fide students qualified to pursue a full course of study may undertake practical training and receive a salary.A period of practical training must serve a legitimate purpose.For example, a U.S. employer to train a foreign national for a permanent position in the United States cannot use it.

A student must have been in F-1 status for at least 9 months in order to receive permission for practical training. (If a student has engaged in full-time studies in another nonimmigrant category (H-4, L-2, and J-1) and has now changed to F-1 status, the aggregate period of study is considered to determine whether the 9-month standard has been met.

There are two types of practical training:

1. Optional training
2. Curricular training

Optional Practical Training (OPT) can be exercised in one of four circumstances:

1. During student’s annual vacation or other times school is not in session (up to 40 hours);
2. While school is in session (not to exceed 20 hours per week);
3. After completion of course requirements (excluding thesis or equivalent) for bachelor’s, master’s or doctoral degree program; or
4. After completion of the course of study.

Procedures:

1. Limited to 12 months and training must be completed with 14 months of graduation.
   
   Please note: Part-time pre-graduation practical training (20 hours or less) is calculated at one-half the full-time rate.
   
   
2. Request for authorization or optional practical training must be made to designated school official (DSO) on Form I-538, accompanied by his/her current Form I-20.
   
   
   1. The DSO must certify on Form I-538 that the proposed employment is directly related to the student’s major area of study and commensurate with the student’s educational level. The DSO then sends the I-538 to the INS data processing center for tracking purposes.
   2. The DSO will then date and endorse the student’s I-20 to reflect OPT in the student’s field is recommended “full-time or part-time” from (date) to (date).
   3. The I-20 is returned to the student.
   4. The student must submit his/her OPT request not more than 120 days before and not 60 days after completion of studies*.
      
      * - When a request is submitted toward the end of this potential window of 180 days, it is possible that the approval process will use up some of the student’s maximum eligibility period for training and therefore it is unlikely the INS will issue the EAD card in time for the student to complete 12 months of training before the 14-month completion date is reached.
   
   
   
3. An F-1 student must be issued an Employment Authorization Document (EAD card) on Form I-765 by the INS before accepting employment. This includes:
   
   
   1. Completed Form I-765 with filing fee;
   2. DSO’s recommendation on Form I-20;
   3. Two (2) INS-style photos; and
   4. Signature card.
   
   
   
4. Once EAD is approved, the F-1 candidate is eligible for employment. Processing time to receive an EAD is approximately 90 days.

Curricular Practical Training is an integral part of the established curriculum and the proposed curricular practical training must be listed in the school’s course catalogue with in the number of credits. There is no limit on curricular training, but after 1 year of full-time curricular, the student is ineligible for OPT. Curricular training can be exercised as follows:

1. The student is required to take academic courses for one term, followed by a term of work experience, in some instances, course work and work experience may coincide.
2. The student is given course credit for the employment even when the course is an elective in the student’s program; i.e. credits for summer employment in the student’s major.
3. The student is not given credit for employment, but the internship or practicum is a mandatory requirement for graduation.

Procedures:

1. The student must submit a Form I-538 to the DSO. The DSO endorses the I-538 and sends to the INS for data processing.
2. The DSO endorses the student’s Form I-20 for employment authorization. The student may commence employment once the I-20 is endorsed (no EAD card is required).

Should you have questions about the F-1 Visa or other immigration matters contact us for professional and personalized legal counsel.