Avoiding Pitfalls with the F-1 Student Visa
By Momal S. Iqbal, Esq.
Los Angeles, CA
Hundreds of thousands of people from around the world each year, in an effort to better their lives and gain a stronger academic foundation, come to the United States as students to attend school on the F-1 visa. However, many are unaware of the requirements to maintain valid F-1 status, leading to serious and unforeseen immigration consequences for many hard working students. Furthermore, thousands of students have been lured to the United States by fraudulent universities which promise students immediate employment authorization, online courses, and assistance with job placement after graduation. The rise of these fraudulent universities has caused stricter enforcement of the F-1 visa by the Department of Homeland Security, Immigration and Customs Enforcement (ICE). This article is intended to help students navigate the common pitfalls associated with the F-1 visa and help aspiring students recognize red flags associated with prospective schools.
In January 2011, Tri-Valley University in Pleasanton, California was shut down for fraud associated with the F-1 visa program. As a result, thousands of foreign students, mostly from South Asia, were stripped of their student status, and many were placed in proceedings to be removed from the United States. Then in August of 2011 ICE authorities raided University of Northern Virginia leaving approximately two thousand F-1 students in limbo. The growing number of these private, for profit, and usually unaccredited universities are presenting a real threat to the legitimacy of the F-1 program. Many students are misled by universities into thinking that they are complying with immigration laws. Therefore, it is important for students and their parents to arm themselves with the knowledge to ensure they are not being taken advantage of and recognize when to ask questions to protect themselves.
The United States has monitored the presence of international students and exchange visitors since World War II. After the First World Trade Center bombing in 1993, which involved a foreign student that had overstayed his student visa, there was a push to create an electronic tracking system that would provide better and timelier information regarding foreign students in the United States. This eventually led to the creation of the Student Exchange Visitor Information System (SEVIS), a web-based system that provides real-time, up-to-date information on F, M and J non-immigrants. SEVP, a component of ICE, manages SEVIS, and is responsible for certifying all schools for nonimmigrant student admission. SEVP also monitors certified schools to ensure school compliance with SEVIS reporting and recordkeeping regulations.
Each SEVP-certified school must appoint at least one Designated School Official (DSO). This person serves as a link between F-1 students and SEVP, and plays a central role in ensuring students at their school maintain valid status while in the United States. Problem schools often have DSOs that give bad advice to F-1 students on a number of issues. Therefore, students should be aware of situations to avoid to ensure they do not fall out of status. The following are common issues to be aware of that can jeopardize a student’s F-1 status.
1. Curricular Practical Training (CPT)
One of the prevailing problems our office has seen in recent requests for evidence (RFE), usually when a F-1 student is trying to obtain work authorization for OPT or a change of status to another nonimmigrant status (such as a H-1b), involves improper CPT. CPT is alternative work/study, internship, cooperative education, or any other type of required internship that is offered by sponsoring employers through cooperative agreements with a school.
The DSO may authorize a student to participate in CPT if it is an integral part of an established curriculum and the student has completed one full academic year of full-time study. CPT is an “integral part of an established curriculum” when it is a requirement of the program or, if it is not required (which is usually the case), the student must receive credit for the training by enrolling in it as a class. An exception to the one academic year requirement is provided for students enrolled in a graduate program that requires immediate participation in CPT. A student may begin curricular practical training only after receiving his or her Form I-20 with the DSO endorsement. Please also note that once a student has completed 12 months of full-time CPT, he or she becomes ineligible for optional practical training (OPT) at that educational level. So it is important for students to keep track of how many months they are using CPT to ensure they preserve the ability to participate in OPT down the road.
Students should try to ensure that their CPT employer and the school have a cooperative agreement with each other and request a copy of the agreement for the student’s own records. Many RFE’s regularly request these agreements. Additionally, request and keep offer letters from CPT employers that describe the location and duties of the position, the dates of proposed employment, and whether the CPT is full-time or part-time.
2. Physical Presence in Class
Another common issue that could result in a violation of F-1 status is taking “virtual,” “online,” or classes that do not require the student to be in the same physical location as the instructor. This is commonly the case with schools flagged by ICE for F-1 violations. Under the regulations, no more than the equivalent of one class that does not exceed three credits is allowed per academic term if the class is taken online or through distance education. This includes classes where the instructor is not present and conducting the class through Skype or some other virtual method. When dealing with a physical presence issue, students should limit their online coursework or at the very least ensure some type of physical participation in the form of periodic in-person meetings with the instructor or a final presentation/report requiring physical presence as a requirement of the course.
Recently, RFEs have been requesting evidence demonstrating the student lives within a commutable distance from the educational institution so they can physically attend classes. Consequently, students should try to keep records of signed residential leases, affidavits from roommates, mail addressed to the student at the residential address, bus passes, airline tickets, etc., to show they live in a commutable distance from the school and have physically attended classes.
Due to the heightened scrutiny on the physical attendance of classes, students should be especially weary of schools that try to recruit foreign students with programs that emphasis online courses. Avoid taking classes where the instructor is not physically in the room with the students; live streamlining classes over the internet; or the generic online courses where students can complete coursework on their own schedules.
3. Maintaining a Full Course of Study
Students need to ensure they are taking a full course load, unless they receive authorization from the DSO. The DSO may authorize a reduced course load for circumstances such as a student’s initial difficulty with English, medical conditions, and if fewer courses are needed to complete the program in the student’s final term. Failure to obtain authorization from the DSO will leave a student out of status.
The issues outlined in this article are only a few of the ways a student can fall out of F-1 status. Students need to stay vigilant about maintain lawful status and avoid falling prey to scams, especially as the number of fraudulent schools are increasing. Ask questions if things sound “too good to be true;” do not blindly follow the advice of friends and colleagues; research the university that you plan to attend and ensure it is accredited. When in doubt contact the DSO official at the university, an immigration attorney, or even SEVP.
International students make significant contributions to the academic environment and the U.S. economy. We hope this article helps highlight how to avoid some of the common problems associated with the F-1 visa so students can focus on being students.
(Momal Iqbal| Global Immigration Partners, Inc. | Attorney at law| MSI@gotcherlaw.com
Momal has been practicing immigration law since 2008. Prior to becoming a private immigration attorney, she served as an Assistant Chief Counsel for the US Department of Homeland Security, Immigration and Customs Enforcement.
Global Immigration Partners is a family-owned and operated immigration law firm which specializes in employment-based nonimmigrant and immigrant visas. Please visit us at http://imminfo.com for more information on US Immigration issues)