F-1 and J-1 Study Based Visas

F-1 STUDENT/EXCHANGE VISITOR STATUS AND SEVP

Summary of New F-1 Regulations Effective January 1, 2003

On December 11, 2002, the then-INS published a final rule titled "Retention and Reporting of Information for F, J, and M Nonimmigrants; Student and Exchange Visitor Information System (SEVIS)." The rule took effect on January 1, 2003. Although widely noted as the rule implementing SEVIS, this Federal Register entry also made a number of changes in how students maintain and reinstate status, how and when they can obtain practical training authorization, and a number of other issues.

Optional Practical Training - 214.2(f)(10)

F-1 students now become eligible for a new one-year period of post completion optional practical training ("OPT") when a student changes to a higher educational level. Under the new rules, a student could receive one year of OPT upon completing a Bachelors, then get an additional one year OPT for Masters, and then, if the student newly enrolls in a Doctoral program, the F-1 can get a third year of post completion OPT once the Ph.D. is completed.

Request for Practical Training - 214.2(f)(10)(ii)(C)

The new rule specifies that post completion OPT must be requested prior to the completion of the course requirements or prior to the completion of the course of study. For students requesting summer vacation OPT after the first year of study, the application to the BCIS (after school approval of the student’s request for OPT) may be made up to 90 days prior to the completion of the first academic year.

OPT Procedures under SEVIS - 214.2(f)(10)(ii)(E); 214.2(f)(12)

The new rule establishes that, despite the electronic SEVIS records, and the school’s obligation to verify work and home addresses during OPT as well as dates of OPT in the Department of Homeland Security’s SEVIS records, an EAD card still must be requested and obtained before OPT can commence.

A student in OPT remains in F-1 status and therefore the school is required to update in SEVIS any name, address or employment changes during OPT. The term "employment changes" should not be construed to mean that the student must first get permission from the school or INS prior to changing OPT jobs or employers

Dependents - 214.2(f)(15)(ii)

The new rule states that F-2 dependents may not be enrolled full-time in a degree granting course of post-secondary study. F-2 dependents may be enrolled in elementary and secondary school or any avocational or recreational studies. There is no grandfathering of current F-2s enrolled in college, and all such F-2s must apply for a change of status to F-1 by March 11, 2003.

Name and Address Registration - 214.2(f)(17)

The address change registration required by INA 265 (8 CFR 265.1) is satisfied by SEVIS notification within 10 days (even though the school is not required to update SEVIS data until 21 days after the change), but address changes for students registered under Special Registration (NSEERS) still must be filed separately on the Special AR-11, in addition to SEVIS.

SEVIS F-1 Obligations - 214.3(g)

The school must report the following within 21 days: failure to maintain F-1 status or complete educational program, change in address or name, graduation early or prior to program end date on SEVIS I-20, disciplinary action taken by school. Each semester and no later than 30 days after the deadline for class registration, schools must report the following: whether the F-1 student has enrolled, identification of any F-1 student who has dropped below a full course of study without authorization, the current address of the F-1 student.

Education Privacy - 214.1(h)

The new rule implements 641(c)(2) of IIRIRA waiving FERPA (Family Educational Rights and Privacy Act) for purposes of the school information that is required to be collected under 214.3(g).

Admission Procedures - 214.2(f)(1); 214.2(f)(5)(i)

F-1 students in possession of a valid I-20 Certificate of Eligibility may still utilize such document to be admitted to the U.S. prior to August 1, 2003, as long as the I-20 form was issued prior to January 30, 2003. All F-1 students must be entered into SEVIS (Student and Exchange Visitor Information System) and issued SEVIS I-20s no later than August 1, 2003. Students may be admitted under the new rule no more than 30 days prior to the start of classes. Formerly, the student could be admitted 60 days prior to the start date.

Reinstatement of Status - 214.2(f)(16)

The new rule changes the legal standards for applications for reinstatement of student status. Now, the student must apply for reinstatement not more than 5 months after being out of status. Or, if the application is outside of the 5-month limit, the student must establish that failure to timely file was the result of exceptional circumstances. To have a reinstatement approved, the student must show either that the violation of status resulted from circumstances beyond the student's control or that the violation relates to a reduction in the student's course load that would have been within a Designated School Official's power to authorize and that failure to approve reinstatement would result in extreme hardship to the student.

Grace Periods - 214.2(f)(5)(iv)

Students who have completed their course of study and any authorized practical training have a 60-day grace period after expiration of F-1 status. The 60 days run from the end date of the completion of the course of study or the end date of any authorized practical training, whichever is later. F-1 students who obtain authorization from their school to withdraw from school receive a 15-day grace period. Under the new rules, grace periods explicitly do not apply in any other circumstance.

Reduced Course Load - 214.2(f)(6)(iii)

The new rule establishes that a reduced course load is only acceptable to maintain F-1 status if it is subject to prior approval by the school and includes at least six semester or quarter hours, or half the clock hours required for a full course of study. A reduced course load for less than half time is only acceptable for defined medical reasons (214.2(f)(6)(iii)(B)) or for the final term of study if the school determines that fewer courses are needed to complete the course of study (214.2(f)(6)(iii)(C)).

Program Completion Date - 214.2(f)(7)(ii)

The new rule eliminates the ability of schools to allow a grace period of up to one year to the program completion date.

Program Extension - 214.2(f)(7)(iii)

The new rule requires that program extension must be requested by the student prior to the end date on the I-20. Any student who is unable to complete the educational program before the end date on the I-20, and does not request a program extension prior to the end date on the I-20, is out of status.

On Campus Employment - 214.2(f)(9)(i)

The new rule establishes that F-1 students may not work on-campus more than 30 days prior to the actual start date of classes, for those F-1s making their first F-1 entry to the U.S. Under the new rule, transferring F-1s cannot work on-campus until the receiving school has SEVIS jurisdiction over the student’s SEVIS records.

Wage and Labor Attestation Program - 214.2(f)(9)(ii)

The final rule confirms that the wage and labor attestation pilot program is now defunct by removing references to it in the regulations.

J-1 TRAINEE VISAS

CLASSIFICATIONS

The Immigration and Nationality Act provides two nonimmigrant visa categories for persons to participate in exchange visitor programs in the United States. The "J" visa is for educational and cultural exchange programs designated by the U.S. Department of State, Exchange Visitor Program and Designation Staff, and the "Q" visa is for international cultural exchange programs designated by the Bureau of Citizenship and Immigration Services in the Department of Homeland Security (BCIS).

The "J" exchange visitor program is designed to promote the interchange of persons, knowledge, and skills in the fields of education, arts, and sciences. Participants include students at all academic levels; trainees obtaining on-the-job training with firms, institutions, and agencies; teachers of primary, secondary, and specialized schools; professors coming to teach or do research at institutions of higher learning; research scholars; professional trainees in the medical and allied fields; and international visitors coming for the purpose of travel, observation, consultation, research, training, sharing, or demonstrating specialized knowledge or skills, or participating in organized people-to-people programs.

BACKGROUND REQUIREMENTS

Financial Resources

Participants in the "J" exchange visitor program must have sufficient funds to cover all expenses, or funds must be provided by the sponsoring organization in the form of a scholarship or other stipend. "Q" exchange visitors will be paid by their employing sponsor at the same rate paid to local domestic workers similarly employed.

Scholastic Preparation

"J" exchange visitors must have sufficient scholastic preparation to participate in the designated program, including knowledge of the English language, or the exchange program must be designed to accommodate non-English speaking participants. The "Q" exchange visitor must be 18 years old and be able to communicate effectively about the cultural attributes of his or her country.

Medical Education and Training

Exchange visitors coming under the "J" program for graduate medical education or training must meet certain special requirements. They include having passed the Foreign Medical Graduate Examination in Medical Sciences, demonstrating competency in English, being automatically subject to the two-year foreign residence requirement (later), and being subject to time limits on the duration of their program. Physicians coming to the United States on exchange visitor programs for the purpose of observation, consultation, teaching, or research in which there is little or no patient care are not subject to the above requirements.

Forms/Petitions

Participants in the "J" program must present a Form DS-2019 prepared by a designated sponsoring organization. Please Note: As of September 1, 2002, Form DS-2019 will replace the IAP-66 as the official form to be used in the administration of the exchange visitor program. The cut-off date for the use of the Form IAP-66 is August 31, 2002. Exchange Visitor Program sponsors should use only Form DS-2019 to document exchange visitors after August 31, 2002. Forms IAP-66 issued and dated prior to August 31 should be accepted by consular officers in support of visa applications. Participants in the "Q" program must have the designated sponsoring organization file Form I-129, Petition for Nonimmigrant Worker, with the Bureau of Citizenship and Immigration Services in the Department of Homeland Security (BCIS). The BCIS will notify the sponsor on Form I-797 when the petition is approved. It should be noted that the approval of a petition does not guarantee visa issuance to an applicant found to be ineligible under the Immigration and Nationality Act.

VISA INELIGIBILITY/ WAIVER

The nonimmigrant visa application Form DS-156 lists classes of persons who are ineligible under U.S. law to receive visas. In some instances an applicant who is ineligible, but who is otherwise properly classifiable as an exchange visitor, may apply for a waiver of their ineligibility and be issued a visa if the waiver is approved.

WHEN DO I NEED TO APPLY FOR MY VISA?

Exchange visitor visa applicants are encouraged to apply for their visa early to provide ample time for visa processing. Applicants may apply for their visa as soon as they are prepared to do so.

The consular officer may need to get special clearances depending on the course of study and nationality of the student. This can take some additional time. For more information on applicants who may have additional processing requirements see Special Processing Requirements.

Exchange visitors should note that Embassies and Consulates are able to issue your student visa 90 days or less, in advance of the course of study registration date. If you apply for your visa more than 90 days prior to your start date or reporting date as provided on the Form DS-2019, the Embassy or Consulate will hold your application until it is able to issue the visa. Consular officials will use that extra time to accomplish any of the necessary special clearances or other processes that may be required.

APPLYING FOR THE VISA

Applicants for exchange visitor visas should generally apply at the U.S. Embassy or Consulate with jurisdiction over their place of permanent residence. Although visa applicants may apply at any U.S. consular office abroad, it may be more difficult to qualify for the visa outside the country of permanent residence.

Required Documentation

Each applicant for an exchange visitor visa must pay a nonrefundable US$100 application fee and submit:

1) An application Form DS-156, together with a Form DS-158. Both forms must be completed and signed. Some applicants will also be required to complete and sign Form DS-157. Blank forms are available without charge at all U.S. consular offices and on the Visa Services website under Visa Application Forms;

2) A passport valid for travel to the United States and with a validity date at least six months beyond the applicant's intended period of stay in the United States. If more than one person is included in the passport, each person desiring a visa must make an application;

3) One (1) 2x2 photograph. See the required photo format explained in nonimmigrant photograph requirements.

4) For the "J" applicant, a completed Form DS-2019. For the "Q" applicant, a notice of approval, Form I-797.

Other Documentation Both "J" and "Q" applicants must demonstrate to the consular officer that they have binding ties to a residence in a foreign country which they have no intention of abandoning, and that they are coming to the United States for a temporary period. It is impossible to specify the exact form the evidence should take since applicants' circumstances vary greatly.

U.S. PORT OF ENTRY

Applicants should be aware that a visa does not guarantee entry into the United States. The Bureau of Customs and Border Protection has authority to deny admission. Also, the period for which the bearer of an exchange visitor visa is authorized to remain in the United States is determined by the Bureau of Customs and Border Protection, not the consular officer. At the port of entry, a Bureau of Customs and Border Protection official validates Form I-94, Record of Arrival-Departure, which notes the length of stay permitted.

ADDITIONAL INFORMATION

Employment

Employment while in "J" exchange visitor status depends upon the terms of the program. Participants in programs which provide for on-the-job training, teaching, research, or other activities which involve paid employment may accept such employment. Participants in programs which do not involve work may not accept outside employment. The "Q" international cultural exchange program specifically authorizes paid employment as part of the program.

Foreign Residency Requirement

Certain "J" exchange visitors who participate in programs which are financed in whole or in part, directly or indirectly, by an agency of the U.S. Government or by the exchange visitor's government, or who are nationals or residents of a country which has been designated by the Exchange Visitor Program and Designation Staff as requiring the skills of the exchange visitor, must return to their country of nationality or last residence after completing their program in the United States, and reside there physically for two years before they may become eligible to apply for an immigrant or temporary worker visa. "Q" exchange visitors may not participate in another "Q" program until they have been abroad for one year.

Family Members

The spouse and minor children of participants in "J" exchange programs may apply for derivative "J-2" visas to accompany or follow to join the principal alien by presenting a copy of the principal's Form DS-2019. They must demonstrate that they will have sufficient financial resources to cover all expenses while in the United States. Dependents may apply to the BCIS for authorization to accept employment in the U.S. The "Q" exchange program does not provide for the admission of the spouse or children of a participant in a derivative status.

FURTHER INQUIRIES

Questions about the "J" programs, Form DS-2019, and the ability to change programs or extend within a program should be made to the Department of State, Education and Cultural Affairs Bureau, Exchange Visitor and Program Designation Staff, Washington, D.C. Questions about "Q" petitioning procedures, qualifications for various classifications, and conditions and limitations on employment should be made by the prospective employer or agent in the United States to the nearest BCIS office. Questions on visa application procedures at the American consular office abroad should be made to that consular office by the applicant.

How Can I Check the Status of My Application?

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