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F-1 Student Visas

Student VisasAlong with other nonimmigrant visas, the F-1 Student Visa has the baseline requirement of establishing that the alien has nonimmigrant intent. In other words, the alien must show that she only intends to come to the United States for a limited time, for a limited purpose, and that she does not intend to abandon her home abroad. One way to show this nonimmigrant intent is for the student to maintain a home abroad that they have no intention of abandoning. Or, the student could provide evidence of her intent to return to her home country in the form of testimonials from her family, a letter from an employer in that country speaking to her anticipated employment after finishing school, or any other evidence that would tend to establish the student’s strong attachment to her home country.

However, recent directives from the Department of State have instructed Consulate officers interviewing students applying for an F-1 Visa to focus primarily on the applicant’s present intent, as many students have not formed long-term intents and cannot properly assess unknown contingencies such as potentially meeting a U.S. citizen spouse while in school. As such, the dual intent doctrine applies to F-1 Visa applicants. Under this doctrine, an applicant may simultaneously have a present nonimmigrant intent while not foreclosing the possibility of lawfully immigrating to the United States a later date should the opportunity become available. Again, this doctrine is specially applicable an F-1 Visa holder who may presently have no intent of abandoning her home country, but would be open to the thought of marrying a U.S. citizen classmate and subsequently immigrating legally.

In addition, the student must be coming to the U.S. to pursue a full course of academic study, and must demonstrate that she possesses the financial resources to allow her to study without the need to engage in unauthorized employment. The prospective student must also show that she has been accepted by a U.S. school accredited by the U.S. CIS. Consular officers have also been instructed not to discriminate based on the prestige of the academic institution, and to disregard the availability of the student’s proposed course of study in her home country. The U.S. CIS has recently implemented the SEVIS system to ensure that students maintain her proper status.

Stages of an F-1 Visa

The process for obtaining and maintaining an F-1 Visa can be broken down into five stages:

Stage 1: Find a School

A prospective student must first identify a school that is qualified to sponsor a student for a visa. Again, since consular officers are directed to treat all accredited schools equally, a foreign student should not be excessively fixated on the school’s prestige – it will not sabotage the foreign student’s F-1 status.

Stage 2: Get an I-20

Next, a prospective student wishing to achieve F-1 status must obtain a Form I-20. The prospective student’s school issues the Form I-20 and it contains information about the school and the student. Before the school can issue an I-20, the following conditions must be met:

1.) The student must have submitted a written application to the school;

2.) The school must have received the student’s academic record and evidence of financial support;

3.) The student must meet the school’s qualifications for admission, including any English language proficiency; and

4.) The student must have been accepted by the school

Regarding the third condition, Consular officers have also been instructed not to delve too deeply into the prospective student’s intellectual or academic qualifications in light of the school it plans to attend or to complete her proposed course of study. However, if the Consular officer finds reason to believe that the prospective student has engaged in fraud to secure its admission to the school it plans on attending, the Consular officer can use such evidence to show that the prospective student has the intent to abandon its home.

Stage 3: Apply for an F-1 Visa at a U.S. Consulate

Once the school issues the I-20 and sends it abroad to the prospective student, she then applies for the F-1 Visa at her local U.S. consulate. The consulate requires the student to present the following documents in order to complete her visa application:

1.) The I-20;

2.) The student’s passport;

3.) The necessary visa fee (which varies from location to location);

4.) Form DS-156 Application for a Nonimmigrant Visa;

5.) Documentation of sufficient ties to the home country; and

6.) Evidence of financial support.

Barring unusual circumstances, the Consulate will generally be issue the F-1 Visa to the student on the day she submitted her application, or shortly thereafter. The process is slightly different when the prospective student applies for an F-1 visa when she is already in the United States. In such cases, the student will be seeking to adjust her status to that of a student. To do so, she must submit the following documents to U.S. CIS:

1.) An application for the change of status (I-485);

2.) The I-20;

3.) A copy of her passport; and

4.) Evidence of financial support.

If U.S. CIS approves her change of status, U.S. CIS will send one copy of the I-20 and an approval notice to the student. U.S. CIS sends another copy of the I-20 to an U.S. CIS processing center that monitors foreign students. Lastly, after the information is collected, the I-20 is mailed to the school.

Once the prospective student has received her F-1 Student Visa, the prospective student’s spouse and/or under-18 children are eligible to accompany her on F-2 Student Visas.

Stage 4: Entering the US

There is a common misconception surrounding visas: that they give someone permission to enter the United States. That is not that case. Instead, visas merely allow their holders to travel to a United States port of entry to seek admission. For example, if a foreign national does not have a visa, she cannot board a plane or any other vessel destined for the United States. A visa does not guarantee entry – U.S. Customs and Border Patrol still has the final say in whether to admit a visa holder into the country.

The same applies for F-1 Visa holders. After receiving the student visa, the student makes an application for admission at a US port of entry. The student must present her passport, F-1 Visa, evidence of support, and the I-20. If she is admitted to the United States, the U.S. CIS will keep one copy of the I-20 and return the second to the student. The student also receives an I-94 Arrival/Departure Record, which contains a unique control number. This number is noted on the I-20, and is considered an identifier for the student. Saving the I-94 is of the utmost importance. It is this document, not the F-1 Visa, which gives the student permission to remain in the United States.

Stage 5: Maintaining Status

In addition to holding on to her I-94, it is very important for an F-1 Visa holder to maintain her status while in the United States. Legislation in 1996 created additional bars on admission, and increased scrutiny of foreign students since the September 11th attacks have empowered the federal government to remove F-1 students in more and more circumstances that were not previously available.

First and foremost, the student must remain enrolled full-time in her school. An F-1 Visa holder has permission to remain in the United States so long as she is fulfilling the specific purpose of her stay. Once that purpose has been terminated—whether through graduation or ceasing to attend the school—the F-1 Visa holder’s permission to stay no longer applies.

Furthermore, the limited purpose of the F-1 Visa holder’s stay is to learn, not work. Therefore, F-1 Visa holders are significantly restricted in their ability to obtain work while present on an F-1 Visa. Generally, a student can obtain on-campus work and conduct paid research or be a teacher’s assistant, so long as she does not displace a citizen and so long as it is not in the first year of her schooling. Off-campus employment, on the other hand, is usually prohibited. However, there are certain exceptions to this rule, such as a showing of extreme hardship, or if the off-campus employment is with an international organization.

Even though the student must remain enrolled continuously throughout her stay, she does not have to remain at the same school the entire time. An F-1 Student Visa holder may transfer schools, and there is a notification procedure that must be followed:

1.) The student must obtain a new I-20 from the new school and inform the designated student officer at the first school that she intends to transfer;

2.) The student submits the new I-20 to the designated student officer at the new school, which must be done within 15 days of beginning class at the new school;

3.) The designated student officer at the new school must send a copy to both the officer at the first school and to U.S. CIS; and

4.) Upon receipt, U.S. CIS will proceed to return one copy of the I-20 to the student, and, after collecting information, return the other copy to the new school.

To see examples of some of the numerous F-1 Student Visa holders Getson & Schatz has represented, take a look at our Student Visa Success Stories.