non-immigrant visas

If you are interested in studying in the U.S., chances are you will need an F-1 student visa. U.S. immigration law allows for the admission as nonimmigrants those who are coming to the U.S. to participate in a full-time course of study. Most such students enter in F-1 status, although the J-1 visa (for exchange visitors participating in a program approved by the State Department) and M-1 visa (for vocational students) are also sometimes available. What follows is an overview of the process of obtaining an F-1 visa and maintaining that status. Employment-related issues will be addressed in a future article.

General Requirements

As with all nonimmigrant classifications, the most important requirement for obtaining an F-1 visa is the demonstration of nonimmigrant intent. The student must maintain a home abroad that they have no intention of abandoning. The student must be coming to the U.S. to pursue a full course of academic study, and must demonstrate that they possess the financial resources to allow them to study without the need to engage in unauthorized employment. Most students are able to get approved for a stay equal to the duration of their studies in the U.S. and can study in any pre-approved institution. However, there are important exceptions.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 imposed a number of new restrictions on foreign students. Among these is the exclusion of foreign students from kindergarten through eighth grade at public schools and from publicly funded adult education programs. Also, foreign students in grades 9-12 at public schools must reimburse the school for the cost of the education. Failure to do this can result in a bar to admission. Foreign students in public high schools are limited to 12 months of study.

Step 1: Find a School

A prospective student must first identify a school that is qualified to sponsor a student for a visa. A school that wishes to have foreign students enroll must first make an application with the INS. For a school to become qualified to participate in the F-1 process, it must 1) demonstrate that it is a legitimate educational institution, 2) appoint a designated school official (DSO) who will sign all necessary forms, 3) institute a record-keeping and reporting system satisfactory to the INS.

Step 2: Get an I-20

For a foreign student to obtain F-1 status they must first receive a Form I-20 issued by the school that provides information about the school and the student. Before the school can issue an I-20, the following conditions must be met:

• The student must have made a written application to the school.
• The school must have received the student's academic record and evidence of financial support.
• The student must meet the school's qualifications for admission, including any English language proficiency.
• The school must have accepted the student.

Step 3: Apply for a Visa at a U.S. Consulate

After the school issues the I-20, it sends it to the student abroad, who then applies for a visa at their local U.S. consulate. To make the visa application, the student must present the I-20, their passport, the necessary visa fee (which varies from location to location), Form OF-156 Application for a Nonimmigrant Visa, and evidence of financial support. Unless there are unusual circumstances, the visa will generally be issued on the day the application is submitted, or only a few days afterward. A prospective student who has not yet decided on a school can request a B-2 prospective student visa, and once in the U.S., they can seek F-1 status. Note, however, that if a prospective student does not make his or her intentions clear at the time of entry, the INS could very well deny the case.

Step 4: Entering the U.S.

After receiving the visa, the student may make an application for admission at a U.S. port of entry. The student must present their passport, visa, evidence of support and the I-20. If admission is granted, the INS will keep one copy of the I-20 and return the second to the student. The student is issued an I-94 Arrival/Departure Record that contains a unique control number. This number is noted on the I-20, and becomes a sort of permanent identifier. For example, if an F-1 student leaves the U.S., upon re-entry they are given a new I-94. However, the number on it is crossed out and replaced with the initial number noted on the I-20.

Step 5: Maintaining Status

In light of the bars on admission created in 1996, it is very important for the student to maintain their status while in the U.S. There are eight important things that must be done to maintain status.

• Keep a valid passport at all times, unless otherwise exempt from the passport requirement.
• Attend the school authorized.
• Participate in a full course of study.
• Leave the U.S. by the completion date shown on the I-20, or request a program extension from the school's designated student officer.
• If the student wants to change from one educational level to another (for example, a bachelor's program to a master's), they must apply to the designated student officer.
• In most cases, work no more than 20 hours per week while school is in session.
• Not work off campus without INS authorization.
• Report any change in residence to the INS within 10 days.

Of course, one of the most important concepts in F-1 status is a "full course of study." INS regulations give five possible definitions for the concept.

• Postgraduate or postdoctoral study at a college, university, conservatory or religious seminary
• Undergraduate study at a college or university consisting of at least 12 credit hours per term, except in cases where to finish the program the student does not need to take 12 hours in the last term
• Study at a postsecondary institution that awards associate or comparable degrees, and whose credits are accepted by at least three other institutions of higher learning
• Study in a language, liberal arts, fine arts or other nonvocational training program. This study must consist of 18 hours of attendance per week, 22 hours if laboratory work constitutes the dominant part of the course of study
• Study in a high school, providing the foreign student attends the minimum class hours per week required for graduation.

There are some situations in which the foreign student maintains their F-1 status even though they are not enrolled in a full course of study. These include: school vacations; failure to attend classes because of medical reasons; postdoctoral student and fellows who are not enrolled in standard academic courses; students who are carrying a reduced course load because of participation in a fellowship or assistantship; graduate students who have completed coursework but are preparing for exams or researching dissertations; and students who have been authorized for optional practical training.

Read the Latest News Regarding Student and Employment Visas

H-3 Trainees

Requirements

The H-3 nonimmigrant visa category is designed to allow foreign nationals to come to the U.S. to receive training in many different activities. Unlike the H-1B category, the H-3 is not a dual-intent visa, so the beneficiary cannot be pursuing avenues toward permanent residency.

The regulations allow for training in "any field of endeavor." The regulations give examples of agriculture, commerce, communications, finance, government, transportation, the professions, as well as purely industrial areas. The only sort of training that is specifically excluded is graduate medical training. Nurses may, in some circumstances, receive training in the U.S. in H-3 status, and foreign medical students on school vacation can participate in externships at U.S. hospitals. While the category initially appears very appealing, it is subject to many detailed requirements and limitations that render it less useful. Indeed, about only 3000 H-3 visas are issued each year. The category underwent many substantive changes in 1990, when the following requirements were imposed on training programs:

• The training must not be available in the alien's home country
• The alien must not be placed in a position which is part of the normal operation of business which would ordinarily be filled by a U.S. worker


• The alien must not be productively employed unless such employment is "incidental and necessary" to the training
• The training must benefit the alien in pursuit of employment outside the US

There are also eight restrictions on training programs, which are essentially designed to ensure they meet the above listed requirements. Under these restrictions, a training program will not be approved if:

• It would go beyond training to productive employment with the alien acting as part of the petitioner's regular staff
• It is not described in terms of a fixed schedule
• There are no stated objectives
• There is no method by which to evaluate the training
• It is incompatible with the petitioner's other business
• The proposed training cannot be accomplished by the petitioner
• It will teach skills the alien already possesses or will not be able to use in employment outside the U.S.
• It is being used to extend the training of a former student who has used their maximum period of optional practical training. (See here for details on optional practical training)

There are numerous aspects of the H-3 application that must be carefully considered, or the petition risks denials. First among these is that there must be an existing and structured training program. The best way to prove this is to show that training has previously been provided to aliens. In the alternative, this requirement can be satisfied by the submission of formal training materials, such as books, a syllabus and a planned curriculum.

The training cannot be provided as a prelude to eventual employment with the petitioner in the U.S. Rather, the purpose of the training must be to enable the alien to pursue a career outside of the U.S., a career that can by with the U.S. based employer. Generally the INS requires a detailed description of the position the alien intends to pursue. However, there are situations in which this need not be shown. For example, it is not uncommon for a company to provide training in order to create a potential ally in the overseas market. Such a purpose of training is acceptable, but must be explained to the INS.

While the statute creating the H-3 category says only that the training shall not be "designed primarily to provide productive employment," the INS in effect considers any productive employment reason to deny the petition. The INS will determine whether there is productive employment by looking at how much time the alien spends in on the job training. However, on the job training is acceptable, so long as the position held by the alien would not exist without the alien - that is, the alien is not filling a job that would otherwise be held by a U.S. worker.

One of the requirements to obtain an H-3 visa is that the training the alien will receive in the U.S. must not be available in their home country. The INS uses this requirement in two ways to create grounds for denying an application. First, it broadly reads the type of training involved, making it difficult to provide training in U.S. techniques in fields where training is available in other countries. Second, the INS is of the opinion that the more a petitioner can show the employment is not available in the alien's home country, the less likely it is that the alien will use the training to pursue employment there, which a ground for denying the application. This slippery logic places petitioners in a Catch-22 situation - face denial of the petition because the training is available in the alien's home country, or face denial because the alien is receiving training they cannot use in their home country. This may be one of the primary reasons there are only 3000 H-3 visas issued annually.

When training is sought in an area in which the alien already has ability, the INS will closely scrutinize the application to ensure the visa is not being used to provide the alien with productive employment. This also creates difficulties for petitioners - the alien must be prepared for the training, as through an educational program, but cannot be too proficient - either under- or over-preparedness can result in a denial.

Special Education Trainees

Since 1990, there has been an exception from the requirements of H-3 training programs for training in educating children with physical, mental or emotional disabilities. The only requirements are that the petition be filed by a facility with a professionally trained staff and "a structured program for providing education to children with disabilities, and for providing hands-on experience to participants in the special education exchange visitor program." The beneficiary must already hold or be about to finish a degree in special education, or have experience in caring for disabled children. There is an annual limit of 50 such visas available annually.

Procedures

Applying for an H-3 visa is much like applying for any other visa in the H category. The application is made on Form I-129, which is then submitted to the appropriate regional service center. The application must also include evidence that will allow the INS to determine whether the training program meets the four requirements. Typically this is done in the form of a statement from the sponsor of the training program. This statement must include the following:

• A description of the training program, outlining the number of hours spent in classroom or on-the-job training
• The amount of time that will be spent in productive employment
• The employment abroad for which US training will prepare the alien, and why the alien must receive this training in the US


• The amount and source of the alien's compensation, and what, if any, benefit the petitioner will receive

If the petition is approved, the alien will receive an H-3 visa. This maximum period of admission in H-3 status is two years. If the visa is approved for a shorter period, it may be extended in increments of up to one year, but an alien is not permitted to remain in H-3 status for more than two years.

Qualifying family members (spouses and unmarried children under 21) accompanying the H-3 alien are given the H-4 classification.

If the training undergoes a substantial change from that authorized, a new petition must be filed. Otherwise, if the alien continues to participate in the training program, they are deemed to have violated their status and are deportable.