What schools can F-1 foreign students attend?
What documentation is required?
How do I maintain the F-1 Status?
What if I want to transferring to a different school?
How Long Can a Student Stay under F-1 Status?
What about employment?
What considerations are there for change of status to H-1B?
Can F-1 students own a business?
What is "Nonimmigrant Intent?"

Every year, many foreigners come to the U.S. to study and to help their careers and improve their lives. As some degrees take several years to complete, these foreign students go through many changes of circumstances during their stay as a student. During the natural course of study, these foreigners sometimes change their academic discipline, change school, get ill and take a break from their school, get married, travel, work, etc. Maintaining a legal student status during all these activities is not necessarily easy. Unfortunately, because few lawyers are willing to help with students' matters and because not all the schools understand what BCIS requires of the students, or sees the 'big picture', a surprisingly large number of foreign students run into trouble with their immigration status due to a lack of information and guidance. In this article, based on our firm's real experience, I will try to answer some basic , as well as complex, questions foreign students and even academic institutions themselves frequently ask.

As an introduction, the "F" visa is issued for, full-time, academic studies, and the "M" visa for nonacademic or vocational studies. Because students on M visa may not change their status to F-1 or H-1B while in the U.S. in the future, my general advice to foreign students is to qualify for an F-1 visa, given a choice.

Also, there are two basic terms any foreigner that wishes to pursue a course of study in the U.S. must be familiar with: Form I-20 and DSO. An I-20 Certificate of Eligibility is issued by the school where the student intends to enroll and must be submitted or annotated at the time of visa application, request for employment authorization (on or off campus)or for an application to change status. If the student is abroad, she must apply for a visa at the U.S. Consulate. If the applicant is already in the U.S. in another non-immigrant status, the student applies to the BCIS . The I-20 Certificate indicates the expected duration of the study program, the costs, and other information.

The Form I-20 is filled out by a Designated School Official (DSO), often referred to as the International Student Advisor. He or she will not only help the foreign student with the initial process but also continue to remain as a main contact person and adviser at the school. However, they are not attorneys and not qualified to give legal advice, which is usually in the form of strategies and legal opinions about complex issues. Oftentimes, these individuals miss important 'legal' concepts that have no real importance from the schools perspective, but are of paramount importance to a student (who may have 'future' plans).

What schools can F-1 foreign students attend?

The reader might wonder if a foreign student can attend any school of her choice. It is not so. F-1 foreign students can only attend educational institutions that are approved by the BCIS . Are any of the public schools approved to accept foreign students? According to the new law, an F-1 visa will not be issued for a U.S. public elementary or middle school (K-8). If an alien wishes to attend public high school (grades 9-12) in the United States in student visa (F-1) status, he must first submit evidence that the local school district has been reimbursed in advance for the cost of the education. Even then, attendance at U.S. public high schools cannot exceed a total of 12 months. Please note that the dependent children in another type of nonimmigrant visa such as E-2, H-4, L-2, etc. may still attend a public school. And under new rules, spouses of the principal individual (E or L-1) can even now obtain work authorization.

Required Documentation

Once the student has successfully met all the admissions requirements and received an I-20 Certificate by the educational institution she wishes to attend, the student must present the U.S. Consulate a visa application, a passport, and the following documentation:
1) For the "F" applicant, a Form I-20A-B. For the "M" applicant, a Form I-20M-N.
2) Evidence of sufficient funds: Acceptable evidence may include school financial aid, personal and family funds and government assistance. It does not include anticipated earnings from employment during school.
3) Evidence attesting to the applicant's ties to a residence in a foreign country, which they have no intention of abandoning, and that they will depart the United States when they have completed their studies.
Qualifying family members such as spouse and unmarried minor children may also apply for a dependent nonimmigrant visa to accompany the student.

Maintaining the F-1 Status

Upon beginning the study, foreign students must pay particular attention to maintaining a full-time student status. Dropping too many courses or taking a break from a school year must not occur without a good reason. Too many students call us after the school notified them of having fallen out of status or after their I-20 stay has expired. In today's environment it is extremely difficult to obtain reinstatement by the BCIS . Even then, the school official must authorize the issuance of a new I-20 specifically requesting it.

As stated, it has become increasingly difficult to be reinstated into their status once out of status. Traditionally, the student was advised to either depart and re-enter using a valid F-1 visa and Form I-20 validated by the foreign student adviser or filing a reinstatement application with the BCIS . In the current high-security environment, such an application may be interpreted as an admission of a status violation and automatically invoke a deportation order. I cannot emphasize enough how important it is that a student does her best to maintain a legal status, and, if she still falls out of status despite everything, then she must immediately consult with a qualified immigration lawyer about future steps and options.

If the student is unable to complete the program by the time indicated on her I-20, the student must apply to the DSO for an F-1 extension within 30 days preceding the expiration of her I-20 with a compelling medical or academic reason.

Transferring Schools

It is possible to transfer schools on the same F-1 visa as long as the foreign student is currently a genuine nonimmigrant student. The student must notify the present school of the transfer, obtain a new I-20 from the new school, complete the Student Certification portion of the I-20, and deliver it to the DSO at the new school within 15 days of beginning attendance at the new school. The DSO, at that point, will return to the student the endorsed I-20 copy and send the original I-20 to the BCIS and a copy to the old school.

Similarly, if the student wishes to change educational programs but remain at the same school, she must apply for a new I-20 for the new program and submit to the DSO within 15 days of beginning the new program.

How Long Can a Student Stay under F-1 Status?

Many foreign students call us with a concern that their F-1 visa stamp has or is expiring or they do not know how long they are permitted to stay in the U.S. Regardless of the expiration date of their F-1 visa, foreign students under F-1 status may stay for the length of their academic program and any period of authorized practical training. They also get a 60-day grace period to depart the U.S. or to change status. Again, the student must complete the academic program prior to the date of expiration stated on the I-20 and carry a full time course load.

Employment

An F-1 student may accept on-campus employment from the school without BCIS permission but may not accept off-campus employment without the BCIS authorization. In comparison, an M-1 student may not accept employment except under practical training.

An F-1 student may work on the schools campus for up to 20 hours/week during school and full-time during breaks, generally with the authorization from her DSO. For graduate students, on-campus employment may include employment by off-campus employers that have an educational affiliation or research contract relationship with the school.

In contrast, an F-1 student must show severe economic hardship to pursue off campus employment. Off-campus employment is not permitted during the first academic year.

To obtain work authorization, Forms I-538 must be submitted to the foreign student advisor for certification. The student must submit to the local BCIS office the certified I-538, Form I-20 (student copy), Form I-765 with the appropriate filing fee, and supporting evidence showing economic hardship. If approved, the student will receive a one-year employment authorization card permitting up to 20 hours/week of 'off campus' work.
Employment authorization may also be available under the curricular practical training program if the proposed employment is an integral or important part of the academic curriculum. CPT is listed in the schools course handbook and a faculty member will oversee the course. Please note that if curricular practical training lasts more than 12 months, the student is no longer eligible for post-completion practical training.

Lastly, optional practical training is available either before or after graduation for a total period of up to twelve months. Pre-graduation and post-graduation training periods are added together and may not exceed a total of 12 months unless the student returns home for five months or more and later enters the U.S. to engage in a new course of studies. In such a case, the student gets 12 more months of employment authorization. However, if a student merely moves on to the next level (i.e., Master's or Ph.D.), she will have to get new employment authorization for the unused portion of the available 12 months. It is possible for the student to save the 12 months until the end of graduate school or to split it between the schools. To obtain practical training, the student must get the DSO's endorsement on the Form I-538 and then apply to the local BCIS office. As it sometimes takes time to get the employment authorization, it is advised that the student apply for post-graduation practical training as early as 90 days prior to the completion of the academic program.

Change of Status to H-1B

Since the optional practical training (OPT) may last only up to 12 months, any student, who wishes to continue to gain more work experience, should contemplate another work status early on in the OPT stage. We advise these students to find a job that is likely to lead to an H-1B professional position at the end of their OPT status. This means a job that requires the degree the student obtained even at the entry level. Anyone that is considering an alternative work status should consult a qualified immigration attorney for help.

Business Ownership by F-1 Students

Although F-1 students may invest in stocks and bonds and receive interests, they may not engage in self-employment such as creating, owning, and deriving profit from a business that they are productively engaged in. If the foreign student truly has a great idea and the desire to own and manage a business, he should consult a qualified immigration attorney about other statuses such as E-2 treaty investor status.

Nonimmigrant Intent

Finally, the F-1 status requires the intent to return home. This presents a peculiar problem for students who fall in love and marry a US Citizen or receive a permanent job offer because such a marriage or a filed labor certification or immigrant visa petition negates the nonimmigrant intent that they must maintain, and may stop them from being readmitted to the U.S. in F-1 status from a trip abroad. Thus, F-1 students who are considering a marriage to a U.S. Citizen or in any other way permanent residence, or even accepting a permanent job offer should consult an attorney beforehand to work out acceptable and proper immigration strategies

In conclusion, an F-1 student status has many hidden holes through which one might fall out of status, and others which may end up barring reentry, or at minimum require the individual to be stranded in the U.S. Again, it is extremely important to maintain status in order to finish one's academic program and also to be able to move on to the next level, a successful career. A foreign student should always remember the rules associated with his status, including a truly and identifiable 'non-immigrant' intent, and, when in doubt about how to proceed, if it involves basic student issues, ask and follow the instructions of DSO carefully, and seek out the advice of a qualified immigration attorney.