The F-1 nonimmigrant visa is for foreign students to study “at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program in the United States.”1 The U.S. Department of Homeland Security (DHS) and the U.S. State Department oversee the F-1 visa program. Schools apply for designation to be able to enroll foreign students, and once they enroll, schools are responsible for updating all pertinent information in the Student and Exchange Visitor Information System (SEVIS), a data base administered by DHS’s Immigration and Customs Enforcement which tracks foreign students.2 The DHS’s Customs and Border Patrol oversees every admission to the U.S. at the border and other ports of entry.
The F-1 visa is valid for the duration of the academic program, as long as the student is in school full time or is doing authorized practical training following graduation.3 A student may be admitted for a period up to 30 days before the program start date.4 F-1 students are “considered to be maintaining status if he or she is making normal progress toward completing a course of study.”5
There is no limit to the number of F visas that may be issued annually.
An F-1 student’s spouse and minor children are eligible to apply for F-2 visas.6 The duration of an F-2 visa is the same as the principal F-1 student’s.7 Unlike with spouses of J-1 and L-1 visas, F-2 spouses are not eligible to work in the United States.8 F-2 spouses may not “engage in full time study” but minor children may attend elementary or secondary school.9 An F-2 spouse who wants to study full time must apply for and obtain a change of nonimmigrant classification to student status (F-1, J-1, or M-1).10 F-2 spouses and children who study without permission are in violation of their immigration status.11
- 1. 8 U.S.C. §1101(a)(15)(f)(i).
- 2. SEVIS is a computer database designed to track information about students and exchange visitors, which include workers with a J-1 visa. See 22 C.F.R. Part 62, Subpart F.
- 3. 8 C.F.R. § 214.2(f)(5)(i). F-1 students who attend public high schools are restricted to an aggregate of 12 months of study.
- 4. Id.
- 5. Id.
- 6. 8 C.F.R. § 214.2(f)(3); 9 FAM 41.54 N21.
- 7. 9 FAM 41.54 N21.1 a.
- 8. 8 C.F.R. § 214.2(f)(15)(i); 9 FAM 41.61 N13.3.
- 9. 8 C.F.R. § 214.2(f)(15)(ii); 8 C.F.R. § 214.2(f)(15)(ii)(A). However, the F-2 spouse and child may engage in study that is vocational or recreational in nature
- 10. 8 C.F.R. § 214.2(f)(15)(ii)(B).
- 11. 8 C.F.R. § 214.2(f)(15)(ii)(C).
Schools in the United States must seek official designation to enroll F-1 students.12 DHS has established a number of different criteria for approval, the most basic of which is the requirement that “it is a bona fide school.” DHS conducts site visits to ensure that schools are legitimate.13 As of July 2013, DHS has authorized 9,522 schools to sponsor F-1 students.14 Most of these colleges and universities go to great lengths to ensure compliance with the F-1 program, educating students with copious amounts of regulatory data and providing a steady stream of F-1 student updates to DHS’ SEVIS database.
F-1 program regulations suggest that the ability to engage in on-line learning is very limited because an F-1 student’s “physical attendance” for coursework is expected.15 Notwithstanding this requirement, DHS has clarified:
There is no limit to the number of online classes that can be counted toward a full course of study if the school can confirm the physical presence and participation of students. SEVP encourages schools to make maximum use of monitored online training as feasible.16
Foreign individuals must apply to and be accepted for enrollment at a school that has been approved to enroll international students. Through SEVIS, school administrators generate Form I-20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status - for Academic and Language Students, certifying an applicant’s eligibility for student or exchange visitor status. The school sends the Form I-20 to the student. With that form, the student applies for the visa at the U.S. consulate or embassy abroad.20 In addition to this form, students need to have proof that the student has paid the SEVIS fee, statements showing sufficient funds to pay tuition, room and board, preparation for the course of study, and proof of the applicant’s present intent to leave the U.S. at the conclusion of their studies. A student also must be proficient in English or be enrolled in classes leading to English proficiency.21 If an applicant fails to meet the criteria, the visa will be denied.22 There is a higher refusal rate than with other nonimmigrant visas that authorize work. Since 2008, the State Department’s adjusted refusal rate for F-1 visas has met or neared 20%.23 Even so, the majority of F-1 visa applications are granted.
An F-1 student is expected to maintain possession of the initial Form I-20 bearing the admission number, and any subsequent copies that the school issues when changes are made or employment is authorized.24 Replacement copies are equally valid, however.
F-1 students are required to pay a $200 Student and Exchange Visitor Information System (SEVIS) fee to DHS.25 Students use Form I-901, Fee Remittance for Certain Nonimmigrants, to pay the SEVIS fee.26 At the visa interview, Consular officers verify SEVIS fee payment through the system. It is generally a one-time fee as long as the nonimmigrant maintains F-1 status.27 A new fee is not required if the student transfers to a different school, extends their stay or leaves the U.S. temporarily and reenters.
A visa does not guarantee admission to the United States. The U.S. Department of Homeland Security's Customs and Border Protection will either permit or deny entry after their own inspection and will determine the permitted time allowed in the U.S., which may be less time than what is listed on the visa itself.28
- 12. 8 C.F.R. § 214.3 (setting forth requirements for DHS certification for schools).
- 13. 8 C.F.R. § 214.3(h)(3).
- 14. U.S. Department of Homeland Security, ICE, SEVP, SEVIS General Summary Quarterly Review (July 3, 2013), available at http://www.ice.gov/doclib/sevis/pdf/by-the-numbers.pdf. The number of authorized schools is published quarterly.
- 15. 8 C.F.R. § 214.2(f)(6)(i)(G).
- 16. U.S. Department of Homeland Security, ICE, Decision by SEVP Director, Full Course of Study: California Community Colleges Crisis, (Nov. 12, 2009), available at http://www.nafsa.org/_/File/_/regxii/ca_cc_sevpannouncement.pdf.
- 20. 9 FAM 41.61.
- 21. 9 FAM 41.61 N1, N5.1; U.S. Department of Homeland Security, USCIS, Students and Employment, (Aug. 19, 2010), available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7....
- 22. 8 C.F.R. § 214.2(f)(1)(i)(a); 8 U.S.C. § 1231(b).
- 23. U.S. Department of State, Nonimmigrant Visa Statistics, NIV Workload by Category, 2006-2012, available at http://www.travel.state.gov/visa/statistics/nivstats/nivstats_4582.html (last visited June 2013).
- 24. 8 C.F.R. § 214.2(f)(2).
- 25. 8 C.F.R. § 214.13(a)(1); U.S. Department of Homeland Security, ICE, SEVP, I-901 Student and Exchange Visitor Information System, available at http://www.ice.gov/sevis/i901/ (last visited June 2013).
- 26. 8 C.F.R. § 214.13(g).
- 27. 8 C.F.R. § 214.13(e). Generally, status is maintained from the time of obtaining the visa through the time when the student completes the academic program, which can include Optional Practical Training (OPT), or when the student stops going to school, changes immigration status, or departs the United States for an extended period of time.
- 28. 8 U.S.C. §1225; 8 C.F.R. Part 235, Inspection of Persons Applying for Admission; see also Austin T. Fragomen, Jr., Alfred J. Del Rey, Jr., and Sam Bernsen, Immigration Law and Business § 2:11 (2010) (“The issuance of a nonimmigrant visa gives the alien permission to apply for admission to the United States at a port of entry…The visa does not assure an alien that he or she will be admitted to the United States, however; it merely indicates that a consular officer has found the alien eligible for temporary admission to the United States and not inadmissible under § 212(a) of the INA, 8 U.S.C.A. § 1182(a).”).
- 29. 8 C.F.R. § 214.2(f)(9)(i).
- 30. 9 FAM 41.61 N13.1.
- 31. 8 C.F.R. § 214.2(f)(9)(i).
- 32. U.S. Department of Homeland Security, ICE, Module 4: Employment and Practical Training, available at http://www.ice.gov/exec/sevp/Module4.htm.
- 33. 8 C.F.R. § 214.2(f)(9)(i).
- 34. U.S. Department of Homeland Security, ICE, Module 4: Employment and Practical Training, available at http://www.ice.gov/exec/sevp/Module4.htm. DHS advises schools to have students “obtain a letter from the prospective employer concerning the nature of the job and the number of work hours.” However, neither the employers, students, nor the schools are required to show that U.S. workers will not actually be displaced by the foreign-student workers.
- 35. 8 C.F.R. § 214.2(f)(9)(ii)(C).
- 36. Id.
- 37. 8 C.F.R. § 214.2(f)(9)(ii) and (iii).
- 38. 8 C.F.R. § 214.2(f)(9)(ii)(D)(F)(1).
- 39. 8 C.F.R. § 214.2(f)(9)(ii)(D)(F)(2).
- 40. Id.
- 41. Id. The employment authorization is automatically terminated whenever the student fails to maintain status.
- 42. 8 C.F.R. § 214.2(f)(9)(ii)(A).
- 43. Id.
- 48. 8 C.F.R. § 214.2(f)(10)(i).
- 49. Id.
- 50. Id.
- 51. U.S. Department of Homeland Security, ICE, Module 4: Employment and Practical Training, available at http://www.ice.gov/exec/sevp/Module4.htm.
- 52. 8 C.F.R. § 214.2(f)(10)(i) (“Students who have received one year or more of full time curricular practical training are ineligible for post-completion academic training.”).
- 53. Id.
- 56. U.S. Department of Homeland Security, ICE, Module 4: Employment and Practical Training, available at http://www.ice.gov/exec/sevp/Module4.htm.
- 57. 8 C.F.R. § 214.2(f)(10)(i).
- 58. B. McMurtrie, Chronicle of Higher Education, Foreign students pour back into the U.S., (Nov. 21, 2008) available at http://www.uic.edu/classes/actg/actg593/Readings/Education/Foreign%20Stu....
- 59. 8 C.F.R. § 214.2(f)(10)(ii)(A).
- 60. Id.
- 61. 8 C.F.R. § 214.2(f)(11)(i)(B)(1).
- 62. 8 C.F.R. § 214.2(f)(10)(ii)(A)(1), (2).
- 63. 8 C.F.R. § 214.2(f)(10)(ii)(A)(3).
- 64. Id., 8 C.F.R. § 214.2(f)(10)(ii)(C).
- 65. 8 C.F.R. § 214.2(f)(11)(i)(B).
- 66. 8 C.F.R. § 214.2(f)(11)(i), (ii) (“The DSO must update the student's SEVIS record with the DSO's recommendation for OPT before the student can apply to USCIS for employment authorization. The DSO will indicate in SEVIS whether the employment is to be full-time or part-time, and note in SEVIS the start and end date of employment.”).
- 67. 8 C.F.R. § 214.2(f)(11)(i)(A), (B).
- 68. Id.
- 69. 8 C.F.R. § 214.1(f)(11)(iii).
- 70. 8 C.F.R. § 214.2(f)(11)(i)(D) (“Employment authorization will begin on the date requested or the date the employment authorization is adjudicated, whichever is later.”).
- 71. 8 C.F.R. § 214.1(f)(11)(iii)(B), (C).
- 72. 8 C.F.R. § 214.2(f)(10)(ii)(C).
- 73. U.S. Department of Homeland Security, Immigration and Customs Enforcement, STEM-Designated Degree Program List, 2011 Revised List, available at http://www.ice.gov/doclib/sevis/pdf/stem-list-2011.pdf.
- 74. 9 FAM 41.61 N13.5-1.
- 75. 8 C.F.R. § 214.2(f)(10)(ii)(A).
- 76. 8 C.F.R. § 214.2(f)(11)(i)(C) (“If a student timely and properly files an application for a 17-month OPT extension, but the Form I-766, Employment Authorization Document, currently in the student's possession, expires prior to the decision on the student's application for 17-month OPT extension, the student's Form I-766 is extended automatically.”). See also U.S. Department of Homeland Security, Immigration and Customs Enforcement, SEVP Policy Guidance: 0801-2, at 11-12 (Apr. 25, 2008) available at http://www.ice.gov/doclib/sevis/pdf/opt_policy_guidance_04062009.pdf.
- 77. U.S. Department of Homeland Security, USCIS, Extension of Optional Practical Training for Qualified Students, (April 10, 2008), available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176....
- 78. R. Wasem, Congressional Research Service, U.S. Immigration Policy on Temporary Admissions, at 29 (Feb. 28, 2011), available at http://fpc.state.gov/documents/organization/158526.pdf.
- 79. 8 C.F.R. § 214.2(f)(5)(l); 9 FAM 41.61 N10.
- 80. 8 C.F.R. § 214.2(f)(5)(iv); 9 FAM 41.61 N13.5-2.
- 81. 8 C.F.R. § 214.2(f)(5)(vi)(A); 9 FAM 41.61 N13.5-2; U.S. Department of Homeland Security, USCIS, Extension of Post-Completion Optional Practical Training (OPT) and F-1 Status for Eligible Students under the H-1B Cap-Gap Regulations, (April 1, 2011), available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176....
- 82. U.S. Department of Homeland Security, ICE, SEVP Policy Guidance: 0801-2, at 17, (Apr. 25, 2008) available at http://www.ice.gov/doclib/sevis/pdf/opt_policy_guidance_04062009.pdf.
- 85. 26 U.S.C. § 3121(b)(19)(FICA exemption) and 26 U.S.C. § 3306(c)(19) (FUTA exemption); see also Internal Revenue Service, Withholding of Tax on Nonresident Aliens and Foreign Entities, 2011, available at http://www.irs.gov/pub/irs-pdf/p515.pdf.
Both the Department of State and the U.S. Department of Homeland Security maintain data about F-1 students. The number of new F-1 visas has risen over the last decade; in 2012, there were close to 500,000. The amount of individuals in “active F-1 status” time hovers around 800,000 at any given time. F-1 students come to the U.S. from all over the world, but over 70% come from Asian nations. China is the largest sending country for F-1 students, followed by South Korea, Saudi Arabia, India and Japan. Even though the U.S. government possesses detailed information on F-1 students, including their age, gender, country of origin, whether they are working, and where, complete data is not publicly available. The Institute of International Education maintains an extensive database on F-1 students, including information on their employment. That data shows that the number of F-1 students who work in optional practical training programs has increased by 274% over the past decade, to an estimated 85,157 workers, who are mostly from India and China.
The U.S. Department of Labor (USDOL) does not have any role in the administration of the F-1 visa program. As such, USDOL neither collects nor maintains data regarding the number of F-1 students that are working in the U.S.
The Department of State publishes the number of F-1 visas that are issued annually. In 2012, 486,900 new F-1 visas were issued.88
Source: U.S. Department of State, FY 1997-2012 NIV Detail Table, available at http://travel.state.gov/visa/statistics/nivstats/nivstats_4582.html(June 2013).
The Department of Homeland Security has two agencies involved in managing the F-1 program and thus, two sets of numbers. The U.S. Immigration and Customs Enforcement’s (ICE) maintains the database tracking foreign students while they are in the United States. At the border or port of entry, the Customs and Border Patrol (CBP) interviews individuals who have received F-1 visas, decides whether to grant their admission.
ICE publishes SEVIS quarterly reports showing the number of individuals in active F-1 status. During the quarter ending in March 2013, there were 937,033 active F-1 and M-1 students in the United States.
Each time a nonimmigrant worker enters the United States, CBP counts the entry as an admission. The number of admissions of individuals with F-1 visas is published annually.89 In 2012, there were 1,566,815 admission events for individuals with an F-1 visa.90 Given the fact that there is no limitation on the times an F-1 worker may depart and re-enter the U.S., the admissions number is high relative to the number of visas issued. The way the data is collected does not distinguish between the first and return entries; all are counted as separate admissions.91 Many F-1 students return to their home countries for school holidays or on vacation breaks during the year, which results in inflated numbers due to multiple crossings by one individual. Departures are not tracked.92
Asian countries account for 72% of all F-1 visas issued, with Europe a distant second.
Source: U.S. Department of State, FY 1997-2012 NIV Detail Table, available at http://travel.state.gov/visa/statistics/nivstats/nivstats_4582.html
DHS publishes information about the destination states of nonimmigrants based on information gathered when F-1 workers are admitted at the border.94 The five states with the largest flow of F-1 students are New York, Texas, California, Michigan and Massachusetts.
According to IIE, the number of OPT students has almost quadrupled in the span of a decade, jumping from 22,745 participants in 2002 to 85,157 in 2012.98 Since 2010, the top five sending countries for OPT workers are India, China, South Korea, Taiwan and Canada.
- 88. U.S. State Department, FY 1997-2012 NIV Detail Table, available at http://travel.state.gov/visa/statistics/nivstats/nivstats_4582.html (last visited June 2013).
- 89. U.S. Department of Homeland Security, Nonimmigrant Admissions by Class of Admission and Country of Citizenship: Fiscal Year 2012 (Supplemental Table 1), available at http://www.dhs.gov/yearbook-immigration-statistics-2012-nonimmigrant-adm.... (September 2013). One single individual may be counted many times over in this total count because each admission is counted.
- 90. Id.
- 91. Telephone and email correspondence with Office of Immigration Statistics employees, U.S. Department of Homeland Security (2011, 2013).
- 92. Ted Robbins, U.S. Aims To Track Foreigners Who Arrive, But Never Leave, National Public Radio (May 1, 2013), available at http://www.npr.org/2013/05/01/180338462/u-s-aims-to-track-foreigners-who....
- 93. U.S. State Department, FY 1997-2012 NIV Detail Table.
- 94. U.S. Department of Homeland Security, Nonimmigrant Admissions (I-94 Only) by Class of Admission and State or Territory of Destination: Fiscal Year 2012, available at http://www.dhs.gov/yearbook-immigration-statistics-2012-nonimmigrant-adm... (last visited September 2013).
- 95. Victor Cerda, DHS, ICE, Tracking International Students in Higher Education: A Progress Report, at 5, Testimony before the House Committee on Education and the Workforce, (Mar. 17, 2005), available at http://www.ice.gov/doclib/news/library/speeches/cerda031705.pdf (last visited June 2013).
- 96. Social Security Administration, Office of the Inspector General, Congressional Response Report: Compliance with Employment Evidence Requirements for F-1 Students, No. A-08-06-16075, p. 4 (July 2006), available at http://www.ssa.gov/oig/ADOBEPDF/A-08-06-16075.pdf.
- 97. Id. at p. A-1.
- 98. Institute of International Education, International Students by Academic Level, 1979-2012, Open Doors Report on International Educational Exchange (2012), available at http://www.iie.org/opendoors (last visited June 2013).
Given the lack of regulatory rights for F-1 workers, it is not surprising that there is not much of an enforcement scheme. While the U.S. Department of Homeland Security closely monitors the status and movements of F-1 students, the primary enforcement focus is to investigate student violators and prosecute visa fraud. Because there is no specific role for the U.S. Department of Labor in the application process, its enforcement authority with regard to F-1 is almost nonexistent. If there is any sort of discrimination, the Equal Employment Opportunity Commission may be able to pursue the case. State agencies customarily will have the authority to enforce any state laws that apply. To the extent that there is an employment contract or applicable federal or state statute allowing a private lawsuit, F-1 workers may enforce their rights in court, just like any other U.S. worker.
Because DHS’s overwhelmingly proportions its time and resources on investigating F-1 students in violation of their visa requirements, little effort is made to ensure that F-1 students who work are not being exploited on the job. While DHS regularly publishes its successes in deporting student status violators, there is simply not much information out there regarding F-1 student worker abuse. Several DHS enforcement actions have surrounded sham schools that charge foreign individuals money to enroll in school, help them get F-1 visas, approve work, and then never require attendance at classes. While each enforcement action has been slightly different, in many of these cases, school officials are indicted, sentenced to jail time, and forced to pay penalties to the U.S. government, but the student victims just get deported.
F-1 student workers themselves do not have the authority to enforce the scant F-1 regulations in court. However, to the extent that there is an enforceable employment contract, applicable federal or state statute, or common law claim, an F-1 student worker may file a lawsuit to enforce their rights and have their day in court in just like any other U.S. worker.
F-1 students have similar access to counsel issues as other groups of nonimmigrant workers in that lawyers may not be as willing to take their cases. However, because F-1 students are permitted to stay in the U.S. for the duration of their studies, their access to counsel issues are not as serious as their more temporary, transient counterparts in other visa programs such as H-2A, H-2B, and J-1.
Federally funded lawyers may represent individuals with an income below a certain financial level (usually 125% of the federal poverty guideline) and only certain classes of immigrants.106 In most cases individuals with F-1 visas will not be eligible for representation by an LSC grantee because of these financial and immigration restrictions. However, there may be an exception if the student is a victim of domestic violence, human trafficking or another crime.107
- 106. 45 C.F.R. Part 1611 (Financial Eligibility) and Part 1626 (Restrictions on Legal Assistance to Aliens).
- 107. See, e.g., Legal Services Corporation Program Letter 05-2 (Oct. 6, 2005), available at http://www.lsc.gov/sites/default/files/Grants/pdfs/Progltr05-2.pdf.
- 108. 8 C.F.R. § 214.2(f)(9)(i).
- 109. 8 C.F.R. § 214.2(f)(14).
- 110. U.S. Department of Homeland Security, Immigration and Customs Enforcement, SEVP Policy Guidance: 0801-2, at 17 (Apr. 25, 2008) (suggesting that students may work as volunteers or unpaid interns, within legal limits), available at http://www.ice.gov/doclib/sevis/pdf/opt_policy_guidance_04062009.pdf.
- 118. D. Golden, China Rush to U.S. Colleges Reveals Predatory Fees for Recruits, (May 22, 2011), available at http://www.bloomberg.com/news/2011-05-22/china-rush-to-u-s-colleges-reve....
- 119. 8 C.F.R. § 214.3(j).
- 120. Agog Overseas, Work Study Visa, available at http://agogoverseas.com/USA/work-study-visa.html.
- 121. Compare 20 C.F.R. § 655.731(c)(9)(ii) (H-1B workers); 20 C.F.R. § 655.135(j) (H-2A workers); 20 C.F.R. § 655.22(j) (H-2B workers); and 22 C.F.R. § 62.32(l)(1)(iii) (while J-1 Summer Work Travel recruiters are now required to reveal the amount of recruitment fees, the State Department regulatory framework does not limit the fee amounts).
- 122. U.S. Department of State, ICE, SEVP Fact Sheet: Documents Accepted in Lieu of Accreditation, (May 10, 2006) available at http://www.ice.gov/doclib/sevis/pdf/In_lieu_of_accreditation_fs.pdf.
- 123. B. McMurtrie, Chronicle of Higher Education, Foreign students pour back into the U.S., (Nov. 21, 2008), available at http://www.uic.edu/classes/actg/actg593/Readings/Education/Foreign%20Stu....