Obtaining and Maintaining
F-1 Student Status
By: Samuel N Omwenga, Esq.
An F-1 student is in most cases admitted to the U.S. for "duration of status," which is defined as "the time during which an F-1 student is pursuing a full course of study at an educational institution approved by the Service . . . or engaging in authorized practical training following completion of studies, plus 60 days to prepare for departure from the U.S." The INS considers a student to be maintaining status if he or she is making normal progress toward completing a course of study. While on first inspection the definition of duration of status may appear to shelter the career student, in reality, the period of admission is not open-ended. When issuing an I-20, the DSO must state the period of time generally needed to complete the indicated program of study at her or his school. Under the regulations, a DSO estimates the normal completion period for the program of study and is permitted to add a grace period of as long as one year to her or his original estimate.
The expected date of completion of studies encompasses the five-year normal completion time plus a one-year grace period. Factors the DSO may take into consideration in gauging the time needed for a particular student to complete her or his studies include: (i) the average time for all students in the program; (ii) the student's need for acculturation; (iii) the student's need to become accustomed to the teaching style of the school, or of the U.S. in general; and (iv) other legitimate factors that may influence a foreign student's academic progress. Students should make sure the DSO has both has also allowed the maximum grace period to complete such a program. If the DSO has underestimated the time, the student should bring it to his or her attention and have a new I-20 issued accordingly to reflect proper estimated time of completion and/or grace period.
Program Extensions And Extensions Of Stay
Very few students complete their stated academic objectives within the time estimated on the I-20 and in a number of cases, the students altogether stop pursuing studies at their respective institutions. These students must apply for a program extension and an extension of stay. The DSO may grant an extension of stay if the student has continually maintained status, and the failure to complete the objective in the time estimated is due to compelling academic or medical reasons, such as a change in major or research topics, unforeseen research problems, or documented illness. Delays caused by academic probation or suspension are not acceptable reasons for program extensions. In those cases, the student must seek reinstatement to student status, which is discussed below.
For those students who fail to complete their programs as provided in the I-20, they must apply for an extension no less than 30 days before the program completion date listed on the I-20. The application is made directly to the DSO, who may grant an extension if the student qualifies. The INS has no direct involvement in the program extension process. The DSO must, however, notify the INS within 30 days of approving an extension. The DSO notes the granting of an extension on an I-538, which is forwarded to the INS data processing center with the top page of a new I-20 A-B. Only in the case of illness do the regulations require documentation of the reasons for the program extension. In other cases, however, the DSO would be wise to request a letter from the student's academic adviser verifying the basis of the need for an extension.
Although this is relatives simple process, a number of things could go wrong that might require the assistance of a lawyer to resolve: The student could fail to realize that an extension was needed. The student could file a timely application for extension but the DSO fail to process it in a timely manner. The student could file a late application and the DSO decide to ignore the lateness and process it anyway. While the process may go smoothly for such a student, improperly filed extensions could surface as issues in future changes or adjustment of status. It would take an astute examiner to discover such discrepancies, because only by comparing dates on the old I-20, the new I-20, the I-538, and perhaps the INS Student/School database, could inconsistencies be discovered. If such disrepancies are discovered and an examiner finds the student ineligble for INS benefits as a result, a lawyer could nonetheless prevent the INS from using such discrepancies against the student.
Obtaining a Program Extension by Reentry
A student may also seek a program extension by departing and reentering the U.S. A student who possesses a valid visa, if one is required, may be readmitted to the U.S. by presenting a new I-20, with block 3(b) checked (signifying "continued attendance at this school") and "for program extension" indicated in block 3(e). A student whose visa has expired must apply for a new visa at a U.S. consulate. Because a program extension constitutes a substantive change, a new I-20 A-B/I-20 ID must be presented to the consular officer in connection with a nonimmigrant visa application.
The decision to obtain a program extension by reentry is primarily one of convenience. Because INS involvement in program extension is limited, there are few advantages to obtaining an extension by travel. Effecting a program extension through reentry constitutes another escape clause for certain students. If an individual does not satisfy at least one of the regulatory requirements for extension through notification, the DSO nevertheless may be willing to execute a new I-20 with a revised expected completion date and allow the student to depart the country and seek reentry. If the student is successful, an extension is accomplished. There is no regulatory prohibition of such a procedure.
Maintaining Student Status
Several elements must be present for a foreign student to preserve lawful F-1 nonimmigrant status, including the general requirements for maintenance of status imposed upon all nonimmigrant classifications and the special requirements imposed on F-1 students.
Unless the condition has been waived, all nonimmigrants must keep a valid passport. Also, aliens must report a change of address to the INS within ten days. A nonimmigrant student is further required to attend the school indicated on the I-20. He or she also must: (i) carry a full course of study; (ii) be making adequate progress toward an educational objective; (iii) comply with procedures for extensions and transfers; and (iv) work only as authorized.
Pursuing a Full Course of Study
A student's academic objective and education level establish the parameters of a "full course of study."
Graduate, seminary, and conservatory students. A DSO determines what qualifies as a "full course of study" for a student engaged in postgraduate or postdoctoral study at a college or university, or a student engaged in undergraduate or postgraduate study at a conservatory or religious seminary.
Undergraduate college and university students. A student in an undergraduate college or university program taking at least 12 semester or quarter hours of instruction per academic term (in schools using the standard semester, trimester, or quarter systems) is deemed to be pursuing a full course of study as long as all undergraduates enrolled for at least 12 hours are regarded as full-time students and are charged full-time tuition. A school that employs a different formula must note its formula in the school's application for approval, and the INS district director must approve the deviation from the norm. Also, a student who needs less than a full course of study to complete a course of studies during a term may take the lighter course load and still be considered to be maintaining status.
Students in accredited nonvocational programs. A student in a post-secondary program (language, liberal arts, fine arts, or other nonvocational program) at a school that either confers recognized associate or other degrees or has established that its credits are accepted unconditionally by at least three other institutions of higher learning is pursuing a full course of study if the DSO certifies that the program requires at least 12 clock hours of instruction per week, or the district director makes a determination of equivalence during the approval process.
Students in nonvocational and unaccredited programs. Study in any other language, liberal arts, fine arts, or other nonvocational training program qualifies as a full course of study if the foreign student's program consists of no less than 18 clock hours per week (where the chief portion of the course of study is classroom instruction) or at least 22 hours per week (where the majority of the course work is in the laboratory).
Primary and secondary schools. A foreign student is pursuing a full course of study in a primary or academic high school if his or her program consists of class attendance for no less than the minimum number of hours per week required by the school for normal progress toward graduation.
On-campus employment as part of a full course of study. A student is pursuing a full course of study when he or she engages in on-campus employment in accordance with the terms of a scholarship, fellowship, or assistantship.
Enrollment with a reduced course load. Under certain limited circumstances, a student may carry less than a full course load and still maintain F-1 status. As noted above, a student who needs fewer courses to complete a program of study than would constitute a full course load will maintain F-1 status even if he or she takes a lighter course load than ordinarily required by the school. In addition, a student will be permitted to carry a modified course load due to other reasons that satisfy the applicable statute. The INS is not involved in this process; the DSOs are given absolute discretion to authorize any reduction in course load .
Concurrent enrollment in more than one approved school. A unique situation arises where a community college, college, or university student is concurrently enrolled in two approved schools. The INS has recognized and endorsed concurrent enrollment as long as all of the following conditions are satisfied:
(1) The student is enrolled in a degree program at one of the two schools;
(2) The student's combined enrollment constitutes a full course of study;
(3) Enrollment in the second school is with the consent of the DSO at the school where the student is pursuing her or his academic objective;
(4) The courses at the second school are accepted as fulfilling requirements at the principal school;
(5) The DSO at the principal school maintains evidence that the student's combined enrollment is the equivalent of a full course of studies;
(6) The DSO at the principal school maintains all records required under the regulations; and
(7) The name and address of the second school are clearly identified in the "Remarks" in item 9 of the student's I-20.83
Vacations and school breaks. An F-1 student in an academic institution maintains status during the school's annual (or summer) vacation if the student is eligible to register for the next term and intends to do so. A foreign student attending a school on a quarter or trimester calendar who takes only one vacation in a year during one of the terms instead of during the summer will be considered in status during that vacation, if he or she has completed the equivalent of an academic year prior to taking the vacation.
Changes In Educational Level And School Transfers
The same regulations that govern a student's transfer to another institution also apply to a change in a student's educational level (that is, primary, secondary, associate, bachelor's, master's, etc.) at the same institution, such as advancing from bachelor's degree studies to graduate degree studies. To transfer to another institution or to change educational level, the student must be enrolled in the institution that the student was last authorized to attend and must be engaged in either a full course of study, or authorized practical training. Otherwise, the student must seek INS reinstatement.
As with the procedure for program extensions, a transfer occurs upon the DSO's endorsement and does not involve the INS directly. To obtain permission to transfer, a foreign student first advises her or his current school of the intention to transfer. He or she then obtains an I-20 from the new institution and completes the student certification portion of the form. The foreign student must return the completed I-20 to the DSO at the new school within 15 days of her or his first attendance day. A change in educational level is likewise accomplished without the direct involvement of the INS. A student wishing to continue from one educational level to another follows the same procedure that is used to obtain permission to transfer.
The DSO at the new school, or the DSO at the school where the student has changed educational levels, must take several steps to complete the transfer or level change. First, the DSO must note "transfer completed on [date]" in the remarks section, item 9, on the I-20 ID (or, if applicable, the DSO must note the change in educational level), and return the endorsed I-20 ID to the student. The DSO then must submit the I-20 school copy to the INS's data processing center within 30 days of receiving it from the student. Finally, in the case of a transfer, the DSO must forward a photocopy of the I-20 A-B to the school from which the student transferred. When the student changes educational levels at the same school, there is no need for the DSO to take the fourth step. The INS is expected to return the I-20 school copy after data entry, as is done after a student's initial admission.
Change or Transfer by Reentry
A foreign student may accomplish a change in level or a transfer by reentry after travel abroad. Where a student has a valid visa, he or she may be readmitted to the U.S. by presenting a new I-20 A-B/I-20 ID for the new school or the new educational level. Where a student's visa has expired, he or she will first need to obtain a new visa from a U.S. consulate, following the procedures for visa issuance discussed earlier.
Travel by nonimmigrant students falls into four categories: (i) temporary travel of five months or less where the student intends to return to the same school and program for which the visa was issued; (ii) temporary travel of five months or less where the student intends to enroll in a school other than the one for which the visa was issued, or where the student seeks a program change or extension, or seeks advancement to a new educational level; (iii) travel of five months or longer; and, (iv) travel to a contiguous country or adjacent island91 for less than 30 days.
Travel of Less Than Five Months on a Valid Visa
A foreign student possessing a valid visa, if one is required of the student, who intends to return to a school after an absence of five months or less may be readmitted if he or she presents a current I-20 properly endorsed by the DSO for reentry as long there has been no substantive change in any of the items on the I-20.92 Where there has been a substantive change, such as a change in major or program, or a school transfer, the student must present a new I-20.
Travel of More Than Five Months and Return on a Valid Visa
A foreign student seeking readmission after an absence of more than five months must present a valid visa, if one is required of the student, and must submit a new I-20, along with the documentary evidence of financial support required for a new admission.
Consular Visa Issuance for Continuing Students
If a foreign student travels outside the U.S. after an F-1 visa has expired, he or she must obtain a new F-1 visa. If the student applies for the new visa during the course of a short trip abroad while he or she remains engaged in an authorized period of study at the school for which the visa was issued (and if the student is otherwise qualified), a visa may be issued to the student upon presentation of an I-20 A-B endorsed by the DSO on page four. The student should be prepared to present documentation to satisfy the visa criteria, including proof of adequate financial resources, residence abroad, and nonimmigrant intent. A student for whom there has been substantive change, such as a change in schools, programs, academic levels, or financial details, will have to present a new I-20 reflecting such changes when seeking a visa. Moreover, he or she should be prepared to present adequate financial documentation and to provide evidence of genuine student and nonimmigrant intent.
Automatic Visa Revalidation
Students are among the classes of nonimmigrants to whom special automatic revalidation rules apply. These rules permit the admission of certain nonimmigrants to the U.S. after visits of no more than 30 days to Canada, Mexico, and the adjacent islands of the Caribbean. A student initially admitted in F-1 status, or who had his or her classification changed to that of an F-1 student, and who is in status at the time of departure from the U.S., may be readmitted if he or she: (i) is admissible as a nonimmigrant; (ii) is applying for readmission after an absence from the U.S. not exceeding 30 days, and is returning from a trip only to Canada, Mexico, or the adjacent islands; (iii) possesses a valid passport (if one is required); (iv) presents an I-94 Arrival-Departure form showing admission in F-1 status, or a change to F-1 status pursuant to INA § 248; and (v) shows either an I-20 ID properly endorsed at page four if there is no substantive change, or a new I-20 A-B/I-20 ID if there is a substantive change. If the F-1 principal is qualified, the spouse and dependents of an F-1 student also may be readmitted under these procedures.
The automatic revalidation procedures apply to an F-1 student, or the dependents of such a student, only when the F-1 student is in status. Accordingly, where a visa is required, an F-1 student who is not in status and who does not possess a valid visa, either must secure reinstatement before travel, or must obtain a new visa from a U.S. consulate abroad.
An F-1 student may be employed on-campus without the waiting period generally imposed on foreign students seeking off-campus employment authorization, as long as her or his on-campus employment does not displace a U.S. citizen or permanent resident. Under this provision, the F-1 student's employment must be limited to 20 hours per week when school is in session. The student's employment may increase to full-time during annual vacations and other school breaks. Also, a student may continue in on-campus employment if he or she: (i) has been issued an I-20 A-B to begin a new program in accordance with 8 CFR § 214.3(k), and (ii) intends to enroll for the next regular session, term, or semester. The geographic limitation of the term "on-campus" varies with the student's educational level and program. For undergraduates, on-campus includes on-site commercial firms that provide student services, such as the school bookstore or cafeteria, but does not include employment with on-site commercial firms that do not provide student services, such as a construction company erecting a school building. The term on-campus also includes employment in off-campus locations that are associated with the school's established curriculum, such as research centers or performing arts centers located off the general campus grounds. The regulations define on-campus more broadly for graduate students. In addition to the off-campus employment opportunities permitted for undergraduates, graduate students may take advantage of employment opportunities on contractually funded research projects at the post-graduate level, such as research conducted for a private corporation under contract with the school.This provision allows them to work on academic projects under the supervision of their professors without regard to the location of the employment.
The regulations do not place restrictions on the source of allowable remuneration paid for an on-campus employment opportunity located off-site. A student working on an affiliated project under a professor's supervision in the student's field of study is operating within both the letter and spirit of the regulation. It follows, then, that the employer may be the off-site entity with which there is a contractually funded research project at the post-graduate level, and may be the source of the compensation.
On-campus employment relates to status for employment eligibility verification purposes, and no I-688B Employment Authorization Document (EAD) or other endorsement by the DSO or the INS is required. Nevertheless, it may be helpful for the DSO to endorse an F-1 student's I-20 ID to indicate that the student's on-campus employment is authorized, whether the job is on-site or off-site. To avoid any possible misunderstanding, the DSO should endorse the I-20 ID on page four, stating that there is "on-campus employment authorization under the provisions of 8 CFR § 214.2(f)(9)(i)."
The regulations permit an F-1 student to accept three types of off-campus employment that are not related to the student's academic program: (i) employment under § 221 of the wage-and-labor attestation provisions of the 1990 Act,112 (ii) employment authorization, when the student is faced with severe economic hardship,113 and (iii) internships with international organizations, where the employment is within the scope of the organization's sponsorship.