The Student Visa (F-1) allows an applicant to attend University in the United States. Students are allowed limited employment during course study. After graduation, most students are allowed to work for one extra year in their chosen field, through the Optional Practical Training program. Under the STEM program, students graduating in the science, technology, engineering and math are granted a twenty nine month employment period.   Graduation from an accredited U.S. university also opens up the possibility of a longer-term stay via an H-1B or other immigration employment visa.  Employment options are discussed at length below.

To obtain this visa, the prospective student must apply at the U.S. consulate in their home country. If the prospective student is already in the U.S., he or she must apply for a change of status to F-1 before attending class.

Requirements for an F-1 Visa:

Basic requirements include:

• Non-immigrant intent, i.e. a firm desire and intent to return to the home country after the authorized grant of stay
• Strong home ties
• Intention to pursue a full course of study
• Acceptance from an approved USCIS educational institution
• Financial ability to support oneself such that the student will not have to work (but see work exceptions below)
• Passage of TOFL exam, where English is not the student’s native language
• Full Time Attendance

Importance of Non-Immigrant Intent:

The U.S. Consulate will deny any visa application where they think an applicant is going to overstay a trip to the United States. Non-Immigrant intent means that the applicant has no intention of remaining in the U.S. past the time allowed by the U.S. government. An applicant proves non-immigrant intent through behavior, detailing the reason for the trip, providing convincing documentation of this purpose (wedding invitation, business meeting confirmation) and demonstrating strong home ties.

Definition and Importance of Strong Home Ties:

Strong Home Ties are people, things or circumstances that bind you to your home country. Strong Home Ties include owning a business; longstanding employment; minor children; a large family unit; business, religious and social memberships; ownership of houses, boats, cars.

The U.S. Consulate will not issue a B-2 visa to anyone who cannot demonstrate strong home ties. According to their logic, if a person has strong home ties, this means he or she will not want to remain in the U.S. longer than the time period given by DHS. However if a person cannot show strong home times, that person presents a much larger risk of an overstay violation once inside the United States.

It is very important for a student to understand all requirements of their visa. DHS now monitors students very closely and will arrest students who fail to maintain their status. This includes those who fail to attend school full time or who inadvertently let their student visas expire without renewal. Unfortunately, students often find themselves in violation of their status due to misguided advice from a foreign student advisor. For this reason, I recommend that potential and current students seek the advice of a qualified immigration attorney to better educate themselves on the limitations of their visa.

Student Employment:

As a general rule, students are not allowed to work while pursuing their course of study. There are several exceptions to this rule: on campus employment, off campus employment and curricular/optional practical training.

On campus employment is allowed for a maximum of 20 hours per week while pursing a full course of study. The student may work full time during vacation, between semesters and during transition between two academic levels at the same institution. The student should first discuss potential employment with the school’s DSO, to ensure compliance with school and federal rules.

Off campus employment is allowed for a maximum of 20 hours per week when the student can demonstrate severe economic hardship. Examples include loss of financial aid, fluctuation in exchange rate, tuition or rent increases, medical conditions or unexpected changes in the financial condition of the student’s source of support. The student may work full time during vacation. To qualify a student must have been in F-1 status for one full academic year and was caused by circumstances beyond his or her control. The student must first obtain approval from the school’s DSO and then obtain an EAD card from DHS.

Curricular Optional Training can be granted for part or full time. This allows a student to gain practical experience during the course of study. To qualify a student must have been in F-1 status for one full academic year and in an academic program requiring the work as an integral part of the established curriculum. This makes the applicant ineligible for Optional Practical Training. The school’s DSO must approve COT.

Optional Practical Training may be used during a course of study or after and is generally issued for twelve months. If used during school, the student does not need an offer of employment, may work 20 hours during school and full time on breaks. After graduation, the student may work full time. The student must first obtain approval from the school’s DSO and then obtain an EAD card from DHS.  Once in OPT status, the student must actually work and is only allowed 90 aggregate days of unemployment over the twelve month period.

Under the STEM program, students graduating in the science, technology, engineering and math are granted a twenty nine month employment period. This applicant follows the same procedures as students who are granted the twelve month OPT period. However these students are allowed 120 aggregate days of unemployment over the twenty nine month period.

Procedures to Obtain F-1 Status and an F-1 Visa:

There is a two step process for F-1 applicants who are outside the United States. First the student enrolls with the U.S. educational institution and obtains verification of enrollment. The applicant then applies for the F-1 visa at the U.S. consulate in their home country.

The U.S. Consulate may issue a multiple entry visa that is good for many years or may issue a one time entry visa which expires after 30 days. This visa means the recipient may apply for entry to the United States within the time periods listed on the F visa. This visa does not guarantee entry to the United States. This visa does not determine the length of time a person may remain in the United States. All this visa does is allow the recipient to ask for entry to the United States at the port of entry (airport, seaport, land entry). At the port of entry, a DHS officer will then determine if the applicant is allowed to enter the U.S. and for how long. The officer will note the visa category and make the notation “Duration of Status” on an I-94 card and then staple this card into the applicant’s passport. The F visitor is supposed to depart the U.S. within 60 days after graduation or Optional Practical Training unless having applied for an extension or change of status to a new non-immigrant visa category.

For those applicants lawfully in the United States, the applicant files a change of status application with DHS indicating a request to change the applicant’s status. The applicant does not need to depart the U.S., instead automatically switches to the new status on the start date indicated on the DHS approval notice.

Business Visas That Might Apply Before and After Optional Practical Training:

After graduation and Optional Practical Training, students are eligible to change status to the H-1B visa. In addition to H-1B visas, DHS also grants business immigration visas to investors, intra-company transfer employees and applicants seeking on-the-job training. Some categories require a bachelor’s degree, but several work visas exist for those lacking a four year college level degree. For more information about these business immigration visas, please read these articles:

• B-1 and B-2 VISAS: Business and Pleasure
• E-2 VISA: Investors
• H-1B VISA: Professional Workers
• H-3 Visa: Training Visa
• J-1 VISA: Trainee and Intern Exchange Visitors
• L-1 A and L-1B VISA: Managers, Executives and Specialized Knowledge Employees
• O VISA: Persons of Extraordinary Ability
• P Visa: Internationally Recognized Athletes, Artists, Entertainers and Culturally Unique Entertainers
• TN VISA: Canadian and Mexican Workers

If you think you need a lawyer to handle your immigration case, please contact Ms Troy to arrange a consultation to discuss your options. Located in San Francisco, Immigration Attorney Christine Troy can help guide you through the various legal processes and resolve any issues regarding your case. Ms Troy works on cases in San Francisco, the San Francisco Bay Area, Northern and Southern California, across the United States, and internationally.