By Julianne Opet, Esq., Associate, Klasko Immigration Law Partners
The F-1 visa is a nonimmigrant visa designed for temporary study in the United States and allows its holders to live (and under certain circumstances, to work) in the country for the duration of their studies. The visa also creates opportunities to work in the United States after the program of study is completed, and allows its holders to transition to certain other visas for prolonged stay and, in some cases, permanent residency.
What is the F-1 Visa?
The F-1 visa allows for full-time, temporary study in an academic program for which the end result is a degree or certificate. This gives prospective students tremendous flexibility to pursue a traditional undergraduate or graduate-level program, or language training that affords non-English speakers an opportunity to become proficient and develop the foundation necessary to pursue subsequent academic degrees. Prospective students searching for programs to pursue can locate a Student and Exchange Visitor Program (“SEVP”)-certified institution using the Department of Homeland Security database and search function, sorting by geography, school name, and education type.
The F-1 visa does not create a direct path to permanent residency, and it is not a “dual intent” visa, meaning persons intending to enter on F-1 cannot do so with the intent to remain permanently in the United States. However, unlike other nonimmigrants, F-1s are not assigned a designated date by which they must depart the United States after entry. Instead, their entry stamps read “D/S” or “Duration of Status,” which permits them to remain in the United States for as long as required to complete their program without having to continuously apply to extend their status. Also, the application review and visa issuance processes are relatively quick. While timelines vary from consulate to consulate, the U.S. Embassy in Beijing, China is reporting a mere 8-day wait period for interviews after all materials are submitted.
Dependents of the F-1 visa, including spouses and unmarried children under 21, may receive F-2 visas commensurate with the principal applicant. F-1s may engage in employment with some restrictions, however their F-2 counterparts may not. F-2 children are permitted to enroll in public or private primary schools, from kindergarten through twelfth grade, for the duration of the F-1’s academic program.
F-1 applicants must show the consulate that they do not intend to abandon their residences abroad by documenting any financial, familial, or other key ties to their home country to show their commitment to return after completion of the program. They must also demonstrate to academic institutions that they possess sufficient funds to support themselves and any dependents for the duration of the course of study in the United States. The best way to show financial sufficiency is through use of liquid assets to which the F-1 applicant has ready access, with primary evidence being checking and savings account balances. In the event an F-1 is unable to demonstrate financial sufficiency on his own, he may invoke the help of a sponsor who assumes financial responsibility for the applicant so the latter does not become a public charge during his time in the United States. Sponsors must complete and submit a Form I-134, Affidavit of Support, attesting to the type of work in which they’re engaged, their annual income, total savings, and other information relevant to their ability to adequately support the applicant.
Finally, Applicants must be qualified to pursue the course of study selected. This assessment is made by the academic institution itself, and it is evidenced by issuance of a Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status.” I-20s are provided by SEVP-certified institutions to those foreign applicants who are accepted for admission, and they are signed by the respective Designated School Official (“DSO”). The I-20 also indicates whether the prospective student successfully demonstrated financial sufficiency. I-20s are generated by the Student and Exchange Visitor Information System (SEVIS), a DHS database for use by school and program officials to report biographic information about foreign students that is monitored by DHS.
F-1 nonimmigrants in their first year of an academic program are only permitted to work on campus, which is limited to 20 hours per week. This includes on- and off-site opportunities where off-site work must be directly affiliated with the institution. After the first academic year, students can pursue Curricular Practical Training (CPT) contingent upon a job offer; however, training is capped at a maximum of 20 hours per week and the employment must be in an area related to the student’s course of study. Students can also pursue Optional Practical Training (OPT) for up to 20 hours per week concurrently with their academic programs, and/or after completing their undergraduate or graduate degree programs for a maximum of 12 months. Students of Science, Technology, Engineering or Mathematics (“STEM”) are entitled to up to 36 months of OPT pursuant to a newly-released rule by Immigration and Customs Enforcement (ICE) permitting 24-month extensions after completion of 12 months of OPT.
Beyond F-1: Changing Status from F-1 to another Nonimmigrant or Immigrant Visa Category
A key benefit of the F-1 visa is its convertibility. F-1s can file to change status to an employment-based nonimmigrant status upon completion of a degree program if a job opportunity arises while enrolled in school or engaged in OPT. The H-1B visa, for example, is a nonimmigrant visa reserved for temporary employment in a specialty occupation, which is befitting of F-1s who recently completed a bachelor’s or master’s degree program.
H-1B petitions must be filed by an employer, and unless the employer is an institution of higher education or a non-profit or governmental research organization, the petitions are subject to a cap and must be filed on April 1 as part of a lottery system. If the H-1B petition is chosen in the lottery, and then approved by USCIS, the beneficiary must then wait six months, until October 1, to begin employment. For some F-1s, that means starting employment after existing work authorization has expired. However, there are special regulations in place that permit students engaged in OPT to extend their employment authorization and duration of status (referred to as the “cap-gap”), thus allowing for a seamless transition into the new nonimmigrant status.
Also, while F-1s are not permitted to have an intent to remain permanently in the United States at time of entry, it is possible that immigrant intent develops in the future, pursuant to subsequent employment or family-based opportunities. For example, F-1s who meet and marry a U.S. citizen may then become the beneficiaries of a family-based immigrant visa petition and file to adjust their status to permanent resident, if the circumstances allow. Also, if an employer is interested in filing for permanent employment for an F-1, or if the F-1 qualifies for one of the self-petitioning immigrant visas, that may also be an option.
Relationship between F-1 and EB-5
F-1s may also file for EB-5 from the United States. However, the timing of the I-526 is critical. Prospective F-1s who are also interested in later filing an I-526 should obtain their student visa first, prior to filing an immigrant investor petition, so that a pending I-526 does not undermine their claim to nonimmigrant (temporary) intent during the F-1 application process. Also, F-1s who later file an I-526 should be cautious about travel in and out of the United States. Although the filing of an I-526 petition is not usually in the database accessed by Customs and Border Protection at the port of entry, in rare circumstances such a filing could lead to questions at the time of any attempted entry to the United States.
The circumstances are a bit different, though, where the EB-5 petitioner is the parent of an F-1 rather than the principal. Children of EB-5 petitioners whose I-526s are already pending are generally not prejudiced in applying for an F-1 visa because the children themselves have not sought an immigration benefit. If the parent is later approved for EB-5 and applies for the green card, it is possible to later include the child in consular immigrant visa processing or adjustment of status to permanent residence, provided the child did not misrepresent his or her intentions during the F-1 application process or at time of entry.
Once an aspiring F-1 applies for and receives acceptance to one or more academic institutions, she must select an academic program to pursue and submit a $200 SEVIS fee with Form I-901 online. Persons who are already in the United States in some alternate status, other than B-1/B-2 or Visa Waiver (for which change of status to F-1 is not permitted on grounds that entering as a tourist for brief business or pleasure is inconsistent with intent to enroll in school), may request to change nonimmigrant status by filing Form I-539 with USCIS. Persons outside the United States, however, will begin the process of applying for a non-immigrant visa at the consulate.
Applicants for an F-1 visa residing abroad must complete and submit Form DS-160 online and pay the nonimmigrant visa fee of $160, and then proceed to schedule an interview for adjudication of their F-1 application at any U.S. Embassy or Consulate, preferably one where they are domiciled. The reason for this is because consular officers in the country of residence will have greater familiarity with identity documents, financial records, academic degrees or certificates, or idiosyncrasies indigenous to the applicant’s home country for ease of adjudication. Applicants will bring the confirmation page of their DS-160 with uploaded passport photo, proof of fee payment, and I-20 to the interview appointment, as well as any other documentation specifically requested.