From an immigration perspective, one of the easiest ways to get started in the US is as a student. However, the array of visas, and special rules surrounding them, can be very confusing for newcomers. This article breaks down the basics.
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Visa Categories
There are three main types of student visa in the US:
- F-1 visas are for high school and undergraduate students.
- J-1 visas are for a broad category of “exchange visitors” that includes graduate students, post-doctoral fellows, interns, and working holidays.
- M-1 visas are for vocational and technical students.
Students can bring spouses and children to the US using F-2, J-2, or M-2 visas. There are also F-3 and M-3 visas for Canadians and Mexicans who commute to study in the United States.
For one-time seminars and “short courses of study” such as executive education programs, foreign nationals are allowed to enter the US as visitors through the Visa Waiver Program or with a B-1/B-2 visa. These are not considered to be student visas, and the rules applicable to tourists or business visitors apply.
Prerequisites
Applicants for any type of student visa are required to demonstrate “non-immigrant intent.” Any signal of intentions to permanently stay in the US, such as having a US resident spouse, may cause the visa to be rejected.
Applicants must demonstrate adequate financial support to complete their program of study.
Applicants must also register for the SEVIS database by filing a Form I-901. This database tracks their visa status while they are in the US.
Period of Stay
F-1 and J-1 visa holders are allowed to remain in the US for their “duration of status,” which is set forth on a Form I-20 (for F-1 holders) or Form DS-2019 (for J-1 holders) provided by their sponsoring institution. M-1 visa holders are admitted for an initial fixed duration of time.
The initial period of stay may be extended for practical training purposes. This is known as Optional Practical Training (OPT) for F-1 holders, Academic Training for J-1 holders, and Practical Training for M-1 holders.
After the visa term and any practical training period expires, there is a “grace period” of 60 days for F-1 holders and 30 days for J-1 and M-1 holders, during which the visa holder can remain in the US as long as they are not otherwise violating the terms of their visa (such as unauthorized employment). Once the grace period expires, the student will be considered to be overstaying.
A student who overstays their visa may need to leave the US and obtain a new visa in order to avoid imposition of a 3-year or 10-year bar on re-entry. Overstaying has repercussions described in detail in this article. If you have overstayed a student visa, you may contact us for a consultation regarding your situation.
Employment
F-1 students can work on campus without additional government authorization. Off-campus employment is only permitted after the first year of study, is limited to 20 hours per week while school is in session, and must be approved by USCIS. F-1 students are also allowed to engage in Curricular Practical Training (CPT), paid work that forms part of their course curriculum, as approved by their institution.
After graduation, F-1 students can work in the US under the Optional Practical Training (OPT) program. OPT is for a period of up to 12 months, but can be extended to a total of 36 months for holders of degrees in certain approved STEM fields (science, technology, engineering, and mathematics).
Many F-1 students utilizing STEM OPT continue their employment under an H-1B skilled worker visa after the STEM OPT period expires. If an H-1B petition is approved during the STEM OPT period, the so-called “cap gap” rule allows the student to keep working until their H-1B visa becomes effective, even if the STEM OPT period expires during that time.
J-1 students are subject to special employment regulations based on the specific sub-category of their visa and the terms of their Form DS-2019. J-1 students are generally allowed to receive compensation from their sponsoring program, and are also allowed to engage in “student employment” and “academic training.” For college and university students, this is limited to 20 hours per week while school is in session.
M-1 students are generally not allowed to work unless post-completion practical training is approved by USCIS. Practical training is limited to a maximum of six months, and to one month for every four months of full-time study. Practical training approval can be requested by filing a Form I-765.
Any activity that puts a student “out of status,” such as unauthorized employment, may require the student to leave the US and obtain a new visa in order to avoid imposition of a 3-year or 10-year bar on re-entry. Falling “out of status” has repercussions described in detail in this article. If you believe you may be out of status, you may contact us for a consultation regarding your situation.
Exiting Student Status
Student visa holders may be eligible to remain in the US if they qualify for another US immigration status, such as E-1 or E-2 status through an employer based in their home country, H-1B status as a skilled professional, or by marrying a US citizen or green card holder. In such cases, the visa holder can either “adjust status” within the US, or leave the US and apply for a new visa overseas through “consular processing” (which is sometimes faster and easier).
Certain J-1 visa holders are required to return to their home country for two years after their program ends. This category includes medical students, students in programs sponsored by their home country, and students in programs designated as necessary for their home country’s development. These students can only adjust status with the approval of their home country government, or in limited cases of necessity.