Student Visas

Contrary to all appearances and often harsh treatment individuals seeking to study in the United States may run into during their interaction with the U.S. Consulates abroad, U.S. Immigration Law and the underlying policy its carries out favors foreigners seeking educational opportunities in the USA. Such education provides a great deal of interaction between cultures, helps foster better academic and on-job training of foreign professionals and contributes to the World’s economy as well as that of the United States of America. Education related visas can be broadly divided into four distinct groups:

  1. Academic visas (aka F1 visas);
  2. Vocational education visas aka (M1 visas);
  3. Exchange visas (aka J1 visas) and
  4. Training visas (aka H3 visas).

Applying for F-1 and F-2 Student Visas

Foreign students who want to study full time in the United States can do so by applying for an F-1 visa. F-1 Visas allow recipients to study full time at an American college, university, community college, academic high school, private elementary schools, or language school that have approval from the U.S. Citizenship and Immigration Services to admit F-1 students.

Maintaining F-1 Student Visa Status

While on F-1 status, students are required to follow certain rules and regulations in order to maintain their F-1 status. Failure to properly maintain F-1 status can result in the student’s removal from the United States, inability to later seek an adjustment from F-1 status, and inadmissibility to the United States. Students have sixty days to leave the country after their F-1 status lapses.

Reinstatement of F1 Status

In order to maintain F1 student status, an F1 student must follow all of the rules and regulations associated with F1 status. An F1 student who violates the rules of his or her status will be considered to be out-of-status. An F1 student who is out of status may be eligible, depending on the type of status violation and the specific set of circumstances of the situation, to apply for reinstatement of F1 status without departing the United States. This article will explain the rules and regulations for applying for reinstatement of F1 status.

Cap-Gap Relief for Extension of F1 Status and OPT EAD

Due to the H1B cap and the “misalignment of the academic year with the fiscal year,” F1 students who apply for change of status to H1B often face a gap between the expiration of the duration of F1 status and the intended start date for H1B employment. In recognition of this problem, the Department of Homeland Security (DHS) created a regulatory provision providing H1B “cap-gap” relief under certain circumstances for F1 students who timely file for change of status to H1B with a start date for the beginning of the next fiscal year (October 1). H1B cap-gap relief also extends to employment authorization for change of status applicants engaged in optional practical training (OPT).

Change of Status from B Visitor to F1/M1 Student

Under section 248 of the Immigration and Nationality Act (INA) and regulations in 8 C.F.R. 248.1, it is permissible under certain circumstances to change from B1 or B2 nonimmigrant visitor status to F1 or M1 student status. However, the nonimmigrant visitor who is seeking change of status must be maintaining his or her visitor status and be otherwise eligible for change of status and must satisfy the United States Citizenship and Immigration Services (USCIS) that he or she did not obtain a B1 or B2 visitor visa in order to circumvent the normal application process for an F1 or M1 student visa. In this article, we will examine the rules and procedures for seeking a change of status from B1 or B2 visitor to F1 or M1 student. Please note that an alien who enters under the Visa Waiver Program or as a nonimmigrant visitor otherwise without a visa will not be eligible to change status.

Legacy INS Guidance on Whether Acceptance of Tenant Relocation Assistance Implicates F1 Status/Public Charge Concerns

In this article, we will examine an interesting legacy Immigration and Naturalization Service (INS) General Counsel (Genco) Opinion from 1994 addressing whether the acceptance of tenant relocation assistance by a student on F1 status would violate F1 student status and/or render the student a public charge. The Genco Opinion explains that the acceptance of such assistance would neither constitute a status violation nor render the student a public charge. The Genco Opinion offers a detailed analysis of the concept of public charge in explaining why this is so. Although the Genco Opinion is dated, its guidance is consistent with current policies, and it is therefore instructive in highlighting the type of public assistance that does not render one a public charge.

Overview of 24-Month STEM OPT Extensions

On March 11, 2016, the Department of Homeland Security (DHS) published its new final rule regarding STEM OPT extensions for F1 students. The new rule also makes alterations to OPT in general and the H1B “cap-gap” protection. The final rule is effective on May 10, 2016. In this article, we will examine the new rules for 24-month STEM OPT extensions as well as the rules for students who are currently in the midst of STEM OPT extensions under the previous regulatory scheme.

DHS Proposes New Rule to Extend STEM OPT Program

In response to a District Court decision court decision invalidating the STEM OPT program, the Department of Homeland Security proposed a new rule proposal on October 19, 2015. In addition to seeking to maintain the STEM OPT program in compliance with the court ruling, the new rule would make several key changes to the STEM OPT program. We will review the rule proposal and what it means going forward in this article.

M-1 Student Visas - Overview

Foreign students who want to study in the United States at a vocational or nonacademic institution (exempting language training programs which require F-1 student visas), or at certain junior college programs, may apply for an M-1 Student visa. The process for obtaining an M-1 student visa is similar to that of obtaining an F-1 student visa for full time students.

Reinstatement of M-1 Status

A student studying the in the United States on M1 status is required to uphold the requirements of M status in order to remain in status. An M1 student who violates the rules of M1 status will be rendered out of status. Depending on the facts of the situation and the specific violation that caused the M1 student to lapse in status, the student may be eligible to apply for reinstatement of M1 status without departing the United States. This article will explain the rules and regulations for applying for reinstatement of M1 status.

J-1 Student Visas - Overview

J-1 visas are issued to foreign nationals coming to the United States under a United States Department of State-approved exchange program. These programs can be professional, at American colleges, universities, or secondary schools. The length and rules of an exchange program are determined by the program’s sponsor.

Conrad 30 Waiver Program for J-1 Medical Exchange Students

In most cases, J-1 exchange students are required to complete a 2-year foreign residency requirement after the completion of an exchange program before obtaining a new visa to enter the United States. While there are certain waivers of the home residency requirement available, J-1 exchange visitors for graduate medical training are ineligible for most waivers of the home residency requirement. However, the Conrad 30 Waiver Program provides a special avenue for J-1 medical doctors to obtain a waiver of the home residency requirement, provided that they work for a period of three years in certain designated areas.

J Exchange Visitor Teachers

Certain foreign teachers are eligible for nonimmigrant status as J exchange visitors to participate in exchange visitor teacher programs in the United States. The Department of State (DOS) regulations regarding exchange visitor teachers were overhauled on January 29, 2016. The new rules came into effect on February 29, 2016. In this article, we will review the regulations for eligibility as a J exchange visitor teacher.

J Exchange Visitor Program Sponsor Obligations

The J nonimmigrant visa program allows for sponsors to petition for individuals to come to the United States as part of their approved exchange programs. The statutes authorizing the J nonimmigrant visa program are mostly implemented through U.S. Department of State (DOS) regulations. In this article, we will examine 22 C.F.R. 62.10, which sets forth obligations for exchange program sponsors regarding the selection of J exchange visitors, pre-arrival information, orientation information, and the monitoring of exchange visitors.

J Visa Au Pair Program and EduCare Program

Under Department of State (DOS) regulations and guidance, a foreign national between the ages of 18 and 26 from a country with which the United States has diplomatic relations may seek a J visa in order to participate in the Au Pair Program. The Au Pair Program allows the foreign national to reside with an American family for a period of one year while participating in their home life, providing limited childcare services, and enrolling in classes at a U.S. post-secondary institution. The DOS also created a subcategory within the Au Pair Program called the EduCare Program. The EduCare Program has a smaller childcare component and a more prominent educational component. In this article, we will examine the Au Pair Program and the EduCare Program in detail, looking at the applicable regulations and agency guidance.

J Visa Camp Counselor Exchange Programs

The J nonimmigrant visa for exchange visitors is available to foreign nationals who are sponsored by a U.S. Department of State-recognized exchange sponsor to work for a limited period as a camp counselor in the United States.  The regulations regarding J nonimmigrant camp counselors are found in 22 C.F.R. 62.30.  In this article, we will examine the regulations and DOS guidance found in its Foreign Affairs Manual (FAM) primarily at 9 FAM 402.5-6(E)(3) to understand the rules for J nonimmigrant camp counselors.

F1 Students in University of Northern New Jersey Visa Fraud Case File Class Action Lawsuit

On November 18, 2018, a group of students implicated in the “pay to stay” scheme involving the University of Northern New Jersey, a fake university established by the Department of Homeland Security (DHS), filed a class action lawsuit challenging the federal government’s determination that they committed visa fraud by enrolling in the fake university. In this article, we will examine the background of the case and the new class action lawsuit.

DOE No Longer Recognizes ACICS as Accrediting Agency: Effects of Decision for Students at ACICS Accredited Schools

On December 12, 2016, the U.S. Department of Education (DOE) announced that it no longer recognizes the Accrediting Council for Independent Colleges and Schools (ACICS) as an accrediting agency. This article explains the immigration effects of that decision.

SEVP Issues Update on Status of SEVP-Certified Schools Accredited by ACICS

The United States Immigration and Custom Enforcement’s (ICE’s) Student and Exchange Visitor Program (SEVP) has issued a new document regarding the effects of its decision to no longer recognize the Accrediting Council for Independent Colleges and Schools (ACICS) as an accrediting agency. SEVP ceased recognizing the ACICS as an accrediting agency after due to the Department of Education no longer recognizing the ACICS as of December 12, 2016. Additionally, SEVP published notices for students and institutions affected by this change. In this article, we will review the document and the notices.

SEVIS Release 6.35 to be Implemented on July 21, 2017

On July 21, 2017, the Student and Exchange Visitor Information System (SEVIS) will deploy its next release. This release is called SEVIS Release 6.35. SEVIS explains that SEVIS Release 6.35 will include updates related to the Student and Exchange Visitor Program (SEVP) recertification process. The SEVIS news release details some of the changes that users will find in SEVIS Release 6.35.