Nonimmigrant Visa Categories and Studying in the United States

 

Introduction

In May of 2015, the United States Immigration and Customs Enforcement's (ICE's) Student and Exchange Visitor Program (SEVP) released a very useful chart outlining which classes of nonimmigrants are permitted to study in the United States. In this article, we will reproduce the chart and examine key points from the chart in detail.

F2 Spouse

Nonimmigrant Study Chart

The following chart is reproduced from the ICE without footnotes [PDF version]. “O” indicates that study is allowed or required (in the case of F, M, and, in some cases, J status) or that a change of status to F1, M1, or J1 is permissible from such status. “X” indicates study or change of status is not permitted in a given status. To learn more about a specific category, please click the “Nonimmigrant Class” you are interested in to go to the corresponding section of our article. However, we encourage you to see our Discussion section [see section] before reading about specific categories.

Nonimmigrant Class 8 CFR Reference allowing spouses and children Principal may attend school Spouse may attend school K-12 allowed for minor children Post secondary allowed for unmarried minor children Full-time study required for children 21 to 23(25) to maintain dependent status May apply to Change Status to F-1, M-1 or J-1
A. Foreign Government Officials 214.2(a)(1)(i) & (iii) O O O O O O
B. Visitors   X   X X   O
C. Aliens in Transit   X          
D. Crewmen   X          
E. Treaty Traders and Treaty Investors 214.2(e)(4) O O O O   O
F. Academic or Language Students 214.2(f)(15) O O O O   O
G. Representatives to International Organizations 214(2)(g)(1)(iii) & (iv) O O O O O O
H. Temporary Workers 214.2(h)(9)(iv) O O O O   O
I. Foreign Media Representatives   O         O
J. Exchange Visitors 214.2(j)(1)(i) O O O O   O
K. Fiancé(e)s and Spouses of U.S. citizens 214.2(k)(3) O O O O   X
L. Intracompany Transferees 214.2(l)(7)(ii) O O O O   O
M. Vocational or other Nonacademic Students 214.2(m)(17) O O O O   O
N. Certain Parents and Children of section 101(a)(27)(I) Special Immigrants 214.2(n) O   O O   O
O. Workers with Extraordinary Abilities 214.2(o)(6)(iv) O O O O   O
P. Artists, Athletes, and Entertainer 214.2(p)(1) and (8)(iii)(D) O O O O   O
Q. International Cultural Exchange Visitors 214.2(q)(1)(ii) O O O O   O
R. Religious Workers 214.2(r)(4) and (8) O O O O   O
NATO North Atlantic Treaty Organization 214.2(s)(1) and (2) O O O O O O
S. Witnesses and Informants 214.2(t)(3) O O O O   X
T. Alien Victims of Human Trafficking 214.11(o)(11) O O O O   O
TN Professionals under the NAFTA 214.6 O O O O   O
U. Alien Victims of Certain Crimes Pending O O O O   O
V. Certain Second Preference Beneficiaries 214.15(a) and (g O O O O   O

 

Note: We have a section on CNMI-Only Transitional Workers as well [see section].

Source: https://www.ice.gov/doclib/sevis/pdf/Nonimmigrant%20Class%20Who%20Can%20Study.pdf

Discussion

In the following sections, we will go into more detail on the study rules for each nonimmigrant visa category.

First, it is important to distinguish the F1 and M1 nonimmigrant categories. These two categories are the primary student visa categories. As such, an individual may only maintain F1 or M1 status so long as he or she is engaged in a full course of study at a SEVP-certified institution. Depending on the nature of the exchange program, J1 exchange visitors may also study in the United States, subject to the rules of the specific program.

Second, although many nonimmigrants who are not on student visas are permitted to study in the United States, it is important to remember that the nonimmigrant must properly maintain his or her status. To use an example, although an H1B nonimmigrant can in theory study without restriction in the United States, he or she may only maintain H1B status provided that he or she continues to be engaged in H1B employment [e.g., see article on gaps in H1B employment]. Accordingly, it is likely impossible for an H1B nonimmigrant to engage in a full course of study in the United States, even though he or she is not technically barred from doing so, while simultaneously maintaining the requisite H1B employment. Likewise, an H4 nonimmigrant derivative of an H1B principal would potentially have more time to study in the United States than would the H1B principal beneficiary. However, he or she may only study provided that H4 status is maintained. If the principal H1B beneficiary loses status, or if the H4 beneficiary otherwise violates his or her own status, study would no longer be permitted. These same principles apply to every other category. It is also important to understand that study cannot be the primary purpose for seeking a nonimmigrant visa outside of the F1, J1, and M1 nonimmigrant visa categories.

Third, because the principal purpose of non-student nonimmigrant visas is not study, an individual cannot procure an extension of status in order to complete a course of study. Take our H4 nonimmigrant from the previous passage as an example. If an H4 nonimmigrant is in the midst of a course of study, he or she would not be eligible to extend H4 status beyond the principal's H1B status in order to complete the course of study. In order to complete the course of study, the H4 nonimmigrant would either have to change to the appropriate student visa status or change to a different nonimmigrant status for which study would also be permitted.

Finally, in most cases, a nonimmigrant may change to F1, J1, or M1 status in order to study in the United States. However, K and S nonimmigrants are barred from changing status, and there are certain limitations on change of status from J1 or M1. Also, please see our section on B visitors for more information on the peculiarities of changing from B status to student status.

A. Foreign Government Officials

A nonimmigrants are permitted to study in the United States while maintaining A status.

Under 8 C.F.R. 214.2(a)(2)(ii), the unmarried child of a principal A nonimmigrant who is under the age of 21 is eligible for A status. Under 8 C.F.R. 214.2(a)(2)(iii), the unmarried son or daughter of a principal A nonimmigrant may maintain A status up to the age of 23 provided that he or she is in full-time attendance as a student at a post-secondary degree institution. Under 8 C.F.R. 214.2(a)(2)(iv), the unmarried son or daughter may in the same circumstances maintain status up to the age of 25 “if a formal bilateral employment agreement permitting their employment in the United States was signed prior to November 21, 1988, and such bilateral employment agreement does not specify 23 as the maximum age for employment of such sons and daughters.”

B. Visitors

Study is prohibited for B visitors under 8 C.F.R. 214.2(b)(7).

The ICE explains that, in certain circumstances, visitors may “engage in study that is avocational or recreational in nature.” Under 9 FAM 402.2-4(a)(6), an individual may seek a B2 visa primarily for tourism but where the individual will “incidentally [] engage in a short course of study” during the visit.

Furthermore, the ICE notes that, in limited cases, a B2 child may be permitted to study if it “is incidental to the reason for the parent traveling to the United States.” As an example, the ICE explains that the B2 children of a missionary in B2 status may attend K-12 school while the parent is “pursuing the primary purpose of the visit.” However, the length of B2 stay will not be extended in order for the B2 child to complete a school year. In such a situation, the principal nonimmigrant should first consult with an experienced immigration attorney for guidance before seeking to enroll his or her child in school.

Please see the full articles on our website to learn about permissible activities for B1 business visitors [see article] and B2 visitors for pleasure [see article] in detail. Furthermore, please see the relevant section of our B2 article for specific information regarding the prohibitions on studying [see section]. A B visitor should always consult with an experienced immigration attorney to resolve any ambiguities about what is permitted in B nonimmigrant status.

Although B nonimmigrants can seek a change of status to F1 or M1, such applications may be suspect if they conflict with the stated purpose of the visit. However, in certain cases, a B2 nonimmigrant may procure a visa to visit schools in the United States in preparation for a change to F1 or M1 nonimmigrant status [see article].

In a related issue, please see our short article on B1 medical clerkships for certain third- and fourth-year foreign medical students [see article].

Visitors under the Visa Waiver Program (VWP) are not permitted to study in the United States. VWP visitors are also prohibited from changing status.

C. Aliens in Transit

Study is not permitted on C status.

D. Crewman

Study is not permitted on D status.

E. Treaty Traders and Treaty Visitors

E nonimmigrants are permitted to study in the United States while maintaining E status.

F. Academic or Language Students

The F1 nonimmigrant visa category is a student visa category. Accordingly, being a full time student is usually intrinsic to maintaining F1 status.

Under 8 C.F.R. 214.2(f)(15)(ii)(A)(1), the F2 spouse of an F1 nonimmigrant may not engage in a full course of study. The F2 spouse may only engage in “less than a full course of study.”

Under 8 C.F.R. 214.2(f)(15)(ii)(A)(1), the F2 son or daughter of an F1 nonimmigrant may also not engage in a full course of study. However, 8 C.F.R. 214.2(f)(15)(B) provides for an exception: An F2 child may engage in full- time study, including a full course of study, at the K-12 level. This means that the full course of study restriction for F2 children only applies at the post-secondary level.

In order to engage in a full course of study (with limited exception for F2 sons and daughters), an F2 nonimmigrant must change to F1, J1, or M1 status.

Under 8 C.F.R. 214.2(f)(15)(ii)(A)(2), an F2 spouse or child may engage in study that is avocational or recreation in nature, including on a full-time basis.

G. Representatives to International Organizations

G nonimmigrants are permitted to study in the United States while maintaining G status.

Under 8 C.F.R. 214.2(g)(2)(ii), the unmarried child of a principal G nonimmigrant is eligible for derivative G status. Under 8 C.F.R. 214.2(g)(2)(iii), the unmarried child of a principal G nonimmigrant may maintain status up to the age of 23, provided that he or she is in full-time attendance as a student at a post-secondary educational institution. Under 8 C.F.R. 214.2(g)(2)(iv), a derivative G son or daughter may maintain status up to the age of 25 if he or she is in full-time attendance as a student at a post-secondary educational institution and “if a formal bilateral employment agreement permitting their employment in the United States was signed prior to November 21, 1988, and such bilateral employment agreement does not specify 23 as the maximum age for employment of such sons and daughter.” 8 C.F.R. 214.2(g)(2)(iv) only applies to certain G1 and G3 dependents and never applies to G4 dependents.

H. Temporary Workers

H nonimmigrants are permitted to study while in the United States while maintaining H status.

I. Foreign Media Representatives

I nonimmigrants are permitted to study while in the United States while maintaining I status.

J. Exchange Visitors

J exchange visitors are permitted, and in some cases required, to study while in the United States. J2 nonimmigrants do not have the same restrictions on study as do F2 and M2 nonimmigrants.

However, section 212(e) of the Immigration and Nationality Act (INA) imposes a foreign residence requirement on certain J1 nonimmigrants that generally prevents them from changing nonimmigrant status without a waiver. One such waiver for J1 medical graduates is the Conrad 30 Waiver [see article]. J1 nonimmigrants who are not subject to foreign residence requirement are eligible to change status to F1 or M1.

K. Fiancé(e)s and Spouses of U.S. Citizens

K nonimmigrants are permitted to study while in the United States while maintaining K status. However, K nonimmigrants are not permitted to change status.

L. Intracompany Transferees

L nonimmigrants are permitted to study in the United States while maintaining L status.

M. Vocational or other Nonacademic Students

The M1 nonimmigrant visa category is a student visa category. Accordingly, being a full time student is intrinsic to maintaining M1 status.

M2 derivatives are subject to nearly identical rules as F2 derivatives. M2 spouses are not permitted to engage in a full course of study. Under 8 C.F.R. 214.2(m)(17)(ii)(A)(1), an M2 spouse may engage in less than a full course of study at a SEVP certified school. Under 8 C.F.R. 214.2(m)(17)(ii)(B), an M2 derivative child is permitted to engage in full-time study, including a full course of study, at a K-12 school. However, an M2 child is subject to the same rules as an M2 spouse for post-secondary school. An M2 derivative may engage in study that is merely avocational or recreational in nature either on a part-time or on a full-time basis. Otherwise, an M2 derivative may only engage in a full course of study by changing status to F1, M1, or J1.

M1 nonimmigrants are prohibited from changing to F1 status.

N. Certain Parents and Children of [INA] section 101(a)(27)(l) Special Immigrants

N nonimmigrants are permitted to study in the United States while maintaining N status.

O. Workers with Extraordinary Abilities

O nonimmigrants are permitted to study in the United States while maintaining O status.

P. Artists, Athletes, and Entertainers

P nonimmigrants are permitted to study in the United States while maintaining P status.

Q. International Cultural Exchange Visitors

Q nonimmigrants are permitted to study in the United States while maintaining Q status.

You may note that the SEVP chart states that derivative Q nonimmigrants are eligible to study in the United States. Under current law, the only Q visa category that is in effect is the Q1 category. The Q2 and Q3 nonimmigrant categories still exist in the regulations, but were allowed to sunset in 2008 [see section]. The Q1 nonimmigrant category has no associated derivative visa. This means that in order for the spouse or child(ren) of a Q1 nonimmigrant to join the Q1 in the United States, he or she must procure a separate immigration status [see section]. The spouse or child of a Q1 nonimmigrant would be subject to the rules and regulations of his or her status. For example, this means that if the spouse or child came to the United States in B visitor status, he or she would be subject to all the restrictions of such status. Merely being the spouse or child of a Q1 nonimmigrant does not in and of itself afford special privileges.

R. Religious Workers

R nonimmigrants are permitted to study in the United States while maintaining R status.

NATO. North Atlantic Treaty Organization

NATO officials and their dependents are eligible to study in the United States while maintaining status.

Under 8 C.F.R. 214.2(s)(2)(ii), the unmarried child under 21 of a principal NATO official is eligible for derivative status. The unmarried son or daughter of such official under the age of 23 may maintain status provided that he or she is in full-time attendance as a student at a post-secondary educational institution. The unmarried son or daughter of such official under the age of 25 may maintain status under the same conditions “if a formal bilateral employment agreement permitting [his or her] employment in the United States was signed prior to November 21, 1988, and such bilateral employment agreement[] do[es] not specify the age of 23 as the maximum age of employment of such son[] or daughter[].”

S. Witnesses and Informants

S nonimmigrants are permitted to study in the United States while maintaining S status.

In one interesting note, derivative children of S nonimmigrants may be eligible for status regardless of age or marital status. Provided that a derivative S son or daughter maintains status, he or she may study in the United States.

S nonimmigrants are not permitted to change status to F1, J1, or M1 nonimmigrant status.

T. Alien Victims of Human Trafficking

T nonimmigrants are permitted to study in the United States while maintaining T status.

The SEVP guidance notes that, where the principal T nonimmigrant is under 21, any derivative parents and unmarried siblings under the age of 18 are also permitted to study in the United States.

TN. Professionals under the NAFTA

TN nonimmigrants are permitted to study in the United States while maintaining TN status.

U. Alien Victims of Certain Crimes

U nonimmigrants are permitted to study in the United States while maintaining U status.

The SEVP guidance notes that, where the principal U nonimmigrant is under 21, any derivative parents and unmarried siblings under the age of 18 are also permitted to study in the United States.

V. Certain Second Preference Beneficiaries

V nonimmigrants are permitted to study in the United States while maintaining V status.

W. CNMI-Only Transitional Worker

CW nonimmigrants are permitted to study in the Commonwealth of the Northern Mariana Islands while maintaining CW status.

Please note that under 8 C.F.R. 214.2(w)(1)(vii), derivative children are only eligible for CW2 status provided that they are unmarried and under the age of 18.

Conclusion

Many non-student nonimmigrant visa categories permit studying in the United States provided that the nonimmigrant in question is maintaining status. However, it is always important for any nonimmigrant in the United States to have a comprehensive understanding of the particularities of his or her status and the requirements for the maintenance of status. Where any ambiguity exists, a nonimmigrant should consult with an experienced immigration attorney for professional guidance. In many cases, an experienced immigration attorney may be able to help a nonimmigrant change to a student visa status in order to engage in or finish a full course of study.