F-1 Visa

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The F-1 nonimmigrant visa allows foreign individuals to study in the United States; work is allowed on-campus part-time, and off-campus in only certain situations requiring government approval.

I. F-1 VISA

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.

Indeed, the F-1 visa has come to be widely recognized as another temporary work program for jobs ranging from low-wage retail clerks to skilled information technology positions. F-1 students are allowed to work off-campus when they show economic hardship or through practical training programs.  Some students in science, technology, engineering and mathematics fields may stay and work in the United States for more than two years after graduation. Students working post-graduation do so only with authorization from DHS’s U.S. Citizenship and Immigration Services. The U.S. Department of Labor does not regulate the program at all despite its affects on U.S. labor markets. DHS spends considerable resources tracking foreign students, and their enforcement efforts center on finding and removing foreign students who violate the terms of their visa. There is a gap, however, in achieving justice for the students who fall victim to predatory schools that recruit them, charge exorbitant fees, and upon enrollment, immediately farm them out in low-wage jobs that double as curricular training programs.  When the U.S. government discovers these visa mill schemes, the schools and officials are punished, and the students simply deported.
 
While DHS and the U.S. State Department reveal the number of F-1 students, neither agency regularly releases information about F-1 students who work. A non-governmental organization, the Institute of International Education, annually estimates the number of participants in post-graduation work programs based on an extensive surveys, and that number alone has tripled in the span of a decade, from 22,745 participants in 2002 to 85,157 in 2012.
 
 

A. Duration

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

B. No Annual Cap

There is no limit to the number of F visas that may be issued annually. 

C. F-2 Visa For Dependents

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).
II. F-1 STUDENTS – ELIGIBILITY AND APPLICATION PROCESS
The U.S. Department of Homeland Security (DHS) and the U.S. State Department are in charge of administering the F-1 student visa program. Within DHS, the Immigration and Customs Enforcement’s Student Exchange Visitor Program (SEVP) is the primary agency which manages both the schools and the students. Foreign individuals who want to study in the United States must apply to and be accepted at a school that is authorized by the SEVP to enroll international students.  After the student receives an official statement of eligibility from the school, he or she will need to pay an online fee, and then apply for the visa abroad.  During the visa application process, the student will have to show that they have paid all necessary immigration fees, have sufficient funds to pay for their tuition and living expenses, and intend to return home after their studies are complete. Obtaining the visa does not guarantee admission to the United States.  DHS’s U.S. Customs and Border Patrol makes that decision on an individualized basis when the F-1 visa holder presents for admission at the U.S. border or port of entry. 
 
Several employment options are available for F-1 students. Work always requires approval from the school and off-campus work requires approval from DHS’s U.S. Citizenship and Immigration Services.  Throughout the student’s stay in the U.S., the school is responsible for updating SEVIS with the student’s address changes, academic progress and employment status.  Students who graduate may apply for a visa extension to complete the next degree level.
 
 

A. Designated School Organization

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.  

1. Online coursework allowed

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

 
 
 

B. Steps for Students

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.

1. Maintaining the Form I-20

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.

2. Paying the SEVIS Fee

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. 

3. Admission to the United States

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).”).
III. F-1 STUDENTS - EMPLOYMENT OPTIONS
Once the F-1 student is admitted to the U.S., there are several options for working. Upon arrival, all foreign students may work on-campus at the school they are attending for up to 20 hours per week, without limitation.  Off-campus work up to 20 hours a week is only allowed after students complete one year of school in the U.S., as long as the job is related to their field of study.  All work requires school approval. There are two types of off-campus work while the F-1 student is in school: curricular practical training (CPT) and optional practical training (OPT).  CPT is in conjunction with coursework and does not need approval from the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS). OPT is separate from course work and does require USCIS approval. After the F-1 student graduates, OPT is the only way to work lawfully in the U.S. After graduation, full-time OPT work is allowed for up to 12 months.  If the job is in a STEM field, USCIS may approve an additional 17 months for OPT work, making the total work time 29 months.  
 
 
 
 
A. On-campus employment 
Students are allowed to work on-campus if it is “educationally affiliated” with the school  or “directly provide services for students.”29 Students may only work up to 20 hours per week when school is in session, and full-time during breaks and vacation.30 Students must obtain permission from their school and apply for and receive a social security number before starting work. 
 
1. No real limit on job type 
Regulations provide that the on-campus job must be an “integral” part of the student’s educational program.31 However, DHS apparently does not consider the former criteria to be a prerequisite since it is not even mentioned in DHS’ own training program for schools that describes the characteristics of on-campus employment.32
 
2. Prohibition on U.S. worker displacement at on-campus jobs
F-1 regulations state that on-campus jobs offered to foreign students may not displace a U.S. resident.33 However, there are no other rules elaborating how – or even whether - to determine whether foreign student workers will in fact replace U.S. workers.  Moreover, there is no required job posting, no U.S. worker recruitment, no labor market test and no role for the U.S. Department of Labor.  DHS does not appear to have published guidance about this regulation.34
 
B. Off-campus Employment 
 
1. Severe economic hardship
F-1 students may be allowed to work off-campus in cases of economic necessity if on-campus work is not available or insufficient.  An eligible F-1 student may request that his or her school recommend off-campus employment authorization based upon severe economic hardship caused by unforeseen circumstances beyond the student's control.35  For example, “the loss of financial aid or on-campus employment without fault on the part of the student, substantial fluctuations in the value of currency or exchange rate, inordinate increases in tuition and/or living costs, unexpected changes in the financial condition of the student's source of support, medical bills, or other substantial and unexpected expenses” are all mentioned in the regulations defining hardship.36 Working off-campus requires both school and DHS approval.37
 
a) Employment Authorization application to USCIS
The student submits to USCIS their economic hardship application for employment authorization on Form I-765, the required fee, along with the Form I-20 showing the school’s recommendation for off-campus employment and any supporting materials.38 If the application is denied, USCIS must give the reasons for the denial but there is no right to an appeal.  If employment is authorized, an Employment Authorization Document (EAD) will be issued.39
 
b) Employment Authorization Document duration and job portability
The employment authorization document (EAD) to work off-campus may be granted in one-year intervals up to the expected date of completion of the student's current course of study.40 An off-campus EAD may be renewed if the student is maintaining status and good academic standing.41 A student may work for any employer with the EAD.  In other words, unlike temporary nonimmigrant work visas such as the H, J and L subcategories, the EAD is not tied to a particular employer.  An F-1 student may not continue to work off campus after graduation even if the EAD has not yet expired.  
 
c) Work hours
F-1 students who work off-campus with a valid EAD for economic necessity are only allowed to work up to 20 hours per week while school is in session.42 Students may work full time during school breaks.43
 
 
 
 
2. Curricular Practical Training
Curricular Practical Training (CPT) is available after the F-1 student completes one year of academic study.48 CPT must be “an integral part of an established curriculum” and be related to the student’s field.49 CPT programs can include work/study, internships, cooperative education, “or any other type of required internship or practicum, which is offered by sponsoring employers through cooperative agreements with the school.”50  There is “no restriction on the number of hours a student can work per week while in CPT.”51 Students who engage in one year or more of CPT are generally not eligible for OPT.52  There is an exception to the one academic year prerequisite for students enrolled in a graduate program that requires immediate training.53
 
 
 
 
a) No specific wage required
There is no required wage for CPT work.  DHS specifically states that “there is no restriction on compensation during CPT.”56
 
b) School must approve CPT work and report to SEVIS
Prior to starting a CPT program, the student must request authorization from their school.57  DHS delegates to the school the responsibility for determining what is appropriate training. If approved, the school will update the Form I-20 with the work endorsement.  Permission from USCIS is not required but the school must update the SEVIS database about the details of the job.  Some schools have adopted a broad definition of what constitutes “integral” training in order to sometimes unlawfully expand the scope of available work opportunities.58
 
3. Optional Practical Training 
Optional Practical Training (OPT) is for work in off-campus directly related to the F-1 student’s area of study.59  Students may work at OPT jobs only after receiving approval from USCIS.60 OPT jobs are allowed both before and after the student graduates.  To qualify for pre-completion OPT (while the student is still in school), the F-1 visa holder must first have completed a full academic year at the college level.61 Pre-completion OPT is part-time while school is in session and is full-time during breaks.62 Post-completion OPT is available during the 14 month period after graduation.63 However, a 17-month extension of OPT may be granted for graduates in science, technology, engineering and mathematics.64
 
a) School and USCIS must authorize OPT employment 
Both the school and USCIS authorize OPT work.  Students may apply for pre-completion OPT within 90 days of the end of the first academic year and for post-completion OPT within the window of 90 days before and 60 days after graduation.65 The first step in the process is for F-1 students to request that the school recommend OPT. Upon approval, the school provides the student a signed Form I-20 indicating the OPT recommendation and enters that information on SEVIS.66 Next, the student must apply for employment authorization from USCIS by filing Form I-765, Application for Employment Authorization along with the required fee and supporting documents.67 Students must file their Form I-765 with USCIS within 30 days of the school’s entering the OPT recommendation on SEVIS.68  If USCIS approves, the F-1 student worker will receive an Employment Authorization Document (EAD).69 A student may work for any employer with the EAD, as long as that employment fits within the OPT program guidelines.  In other words, unlike temporary nonimmigrant work visas such as the H, J and L subcategories, the EAD is not tied to a particular employer. A student may not begin work until the approved start date shown on the EAD.70 If USCIS denies the employment authorization application, the reasons for denial will be given, but there is no chance for appeal.71
 
b) STEM extensions for post-degree OPT work
F-1 graduates in science, technology, engineering or mathematics (STEM) fields are eligible for an extension of up to 17 months to continue work in their OPT jobs.72  USCIS has published a list of more than 300 possible degrees approved for the STEM extension.73 In other words, graduates with any of these STEM degrees may work with their F-1 visa for a total of 29 months in the U.S.74 For the post-completion OPT extension, students with valid F-1 status must be enrolled in the initial twelve-month OPT program with a job in their degree field.75  To obtain the extension, the student must submit another Form I-765, with another fee, to USCIS prior to the expiration date of the student's current EAD.76
 
(1) H-1b visa via STEM OPT extension 
The STEM OPT extensions started in 2008.  The decision followed a 2004 DHS regulatory rule change to lower the cap on H-1B visas to 65,000 per year.  DHS announced that the STEM OPT extension was designed to allow employers “two chances to recruit these highly desirable [foreign] graduates through the H-1B process, as the extension is long enough to allow for H-1B petitions to be filed in two successive fiscal years.”77 Now, OPT is regarded as the conventional route for an F-1 student worker to convert to an H-1B worker.78
 
(2) Cap-gap extension for F-1 to H-1B
Generally, F-1 visas are valid for the temporary period defined as the “time during which an F-1 student is pursuing a full course of study” at an approved school or is in a practical training program.79 The duration of authorized OPT work depends on the F-1 graduate’s field of study, and may last up to 29 months.  However, there is another 6 month extension for OPT workers whose employers file paperwork necessary to convert them to H-1B workers.80 This extension is called the “cap-gap” because F-1 students may remain in OPT jobs while waiting for USDOL and USCIS to process their employer’s H-1B application, without being forced to leave the United States.81 F-1 students in OPT jobs who do not work for an employer willing to hire them as H-1B workers do not get extra time.  When their OPT period expires they must leave the country within 60 days.  
 
c) Job Portability 
Students who work in OPT jobs may work for multiple employers, work for hire, be a self-employed business owner, or work through an agency or consulting firm.82 Little information is published about to what extent F-1 graduates change employers during their OPT programs.  However, if F-1 workers are depending on their current employer to sponsor them for H-1B status upon the expiration of the 29 month OPT period, they may lack the practical ability to change jobs.
 
 
 
 
 
C. Taxes
Employers do not have to pay employment taxes on F-1 student workers’ wages – which can be up to 8% – because they are exempt from this requirement.85  F-1 students who work will usually pay state and federal income taxes, depending on whether they are categorized for tax purposes as either non-resident aliens or resident aliens. A non-resident alien is only taxed on income earned in the U.S., while a resident alien pays tax on income earned both inside and outside the U.S.  The Internal Revenue Service publishes guidance for foreign workers because federal tax rules are complicated and depend on each individual situation.
 
D. No F-1 student employment during strike or labor dispute
F-1 students may not work at any location where there is a strike or other labor dispute involving a work stoppage of workers.  In these situations, “employment authorization, whether or not part of an academic program, is automatically suspended” when the U.S. Department of Labor certifies that workers in the same “occupation as F-1 students are striking at the place of employment.”   Employers are prohibited from transferring F-1 students working at other facilities to the facility where the work stoppage is occurring.
 
  • 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.
IV. F-1 STUDENTS IN THE U.S. – DATA

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.

 

A. Number of F-1 Students in the U.S.

1. U.S. Department of Labor

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.

2. U.S. Department of State

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).

3. U.S. Department of Homeland Security

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.

a) U.S. Immigration and Customs Enforcement

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.

b) U.S. Customs and Border Patrol

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

B. F-1 Student Demographics

1. National Origin

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

China is the largest sending country for F-1 students with 189,402 visas issued in 2012.93 South Korea, Saudi Arabia, India and Japan round out the top five sending countries for F-1 students, as accounted for by visas issued.  The leading country from Europe is Germany, and in the Americas, both Brazil and Mexico are in the top ten.  While the top ten sending countries for F-1 workers have remained somewhat stable over time, the number of Chinese students has increased by over 200% in the five years since 2008.

Canada is likely one of the largest sending countries as well.  Because Canadian F-1 students do not obtain a visa from the Department of State, they are not counted in the data set.  The rest of the top five sending countries as measured by admissions in 2012 were also in the top ten for visas issued.
 
 
Quarterly SEVIS reports show the top countries of citizenship of active F-1 academic and M-1 vocational students.  The F-1 and M-1 numbers are not disaggregated.  Nonetheless, the inclusion of M-1 numbers does not change the overall make-up of the top sending countries for foreign students.  As of June 2013, the four most recent calendar quarters show China, South Korea, India, Saudi Arabia and Canada as the most common nationalities for active students.
 

2. Student Location

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. 

 
SEVIS quarterly reports published by ICE show that California, New York, Florida, Texas and Pennsylvania are the top five states measured by the number of schools authorized to enroll foreign students under the F-1 academic and M-1 vocational visa programs.
 
 
C. F-1 Student Employment Numbers
 
Students with F-1 visas who work in the U.S. are certainly the most tracked and observed visa holders but perhaps among the least studied nonimmigrant workers. SEVIS tracks “non-immigrants from the moment they are accepted at a U.S. institution, through the completion of their program” and provides real-time information to the U.S. government.95   However, ICE only publishes the numbers of active foreign students, their fields of study and nationality.  The quarterly SEVIS reports do not mention any F-1 student employment statistics or employment-related demographic information.  
 
A Social Security Administration study found that in 2005, 24,504 F-1 students had obtained new Social Security numbers. Furthermore, the agency estimated that 96% of them had “accepted or were promised employment on campus,” many as teaching assistants or food service workers.96 The three countries of origin with the most F-1 students working were India, China and South Korea.97
 
While USCIS has information regarding the number of F-1 students who submit I-765s, for whom they plan to work, and how many EADs are ultimately approved and denied, this information is not regularly published either.  However, through a Freedom of Information Act request, journalists received this information regarding OPT from USCIS and have posted a searchable database of OPT employment online.
 
A non-governmental organization, the Institute of International Education (IIE), annually estimates the number of F-1 student workers with OPT programs, based on its Open Doors survey of U.S. colleges and universities.  While this information from IIE provides a very helpful snapshot of the scope and growth of the OPT program, it is just an estimate and does not all schools that have students enrolled in F-1 programs.  
 

1. Optional Practical Training Data

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. 

 

 
V. F-1 WORKERS' RIGHTS
F-1 program regulations do not contain any significant worker protection rules. There is no specific wage to be paid, no work guarantee and no special remedies for students who lose their jobs through no fault of their own.  The lack of regulatory rights for F-1 students may be due in part to the fact that work should be secondary to academics.  Like any workers, though, F-1 students are protected by other federal or state employment statutes or common law rights that may apply, including but not limited to the Fair Labor Standards Act, the Age Discrimination Employment Act, Title VII of the Civil Rights Act, the Trafficking Victims Protection Act, the Racketeer Influenced Corrupt Organizations Act, and state wage and hour and discrimination laws.  Whether specific statutes or common law rights apply to any given worker will depend on the facts of each particular situation.
 
VI. F-1 ENFORCEMENT

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.   

 

A. U.S. Department of Homeland Security

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.

 
 
 
 
 

B. Private Litigation

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.

1. Access to Counsel

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.

a) Legal Services lawyers

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

VII. F-1 STUDENTS IN THE U.S. WORKFORCE – ISSUES
Issues involved with the F-1 program involve the effect of student employment on U.S. workers and the fact that there are no remedies for students who are victims of visa fraud perpetrated by sham schools. Because there are no wage requirements for F-1 students who work and there is no labor market test, it creates a situation where overt discrimination against U.S. workers is possible.  There have not been many studies of workers’ rights abuses in the F-1 program.
 
 
A. Little Protections for U.S. Workers
The F-1 program regulations contain few protections for U.S. workers.  Regarding on-campus work, F-1 students may not displace U.S. workers.108 However, no federal agency is accountable to ensure this prohibition is enforced.  The only other U.S. worker protections is that employment authorization for any F-1 students ceases whenever there is a labor dispute involving a work stoppage or strike at the same workplace.109 Even so, employers who hire F-1 students do not have to adhere to any labor market tests, wage standards or U.S. worker recruitment efforts.110 Economists have raised many concerns with the effect of OPT employment on U.S. labor market, including suppressing wages and even contributing to U.S. unemployment rates. 
 
 
 
B. Foreign Recruitment
 
F-1 students may find out about the opportunity to study (and work) in the U.S. through third party recruiters.  These recruiters may be individuals or business entities and may be based either in the U.S. or abroad. Some U.S. colleges and universities rely on third-party recruiters to help steer foreign students to their schools for a fee, paid either by the student, the school or both.118 By law, approved schools may only advertise that: “This school is authorized under Federal law to enroll nonimmigrant alien students.”119 As with other nonimmigrant visa programs, there is a risk that when recruiters misrepresent the F-1 visa program and make false promises.  Some overseas college recruiters even boast on-line about immediately allowing extended periods of work.  For example, one recruiter in India suggests that students will be employed quickly upon enrollment, students will work in entry-level jobs “paying $8 to $10 per hour that require “little work experience, skills” and can work “40+ hours per week.”120  There are no rules that pertain to recruiters specifically.  For instance, unlike other nonimmigrant program, there is no rule prohibiting recruiters from charging fees to the workers or making them responsible for misrepresenting the F-1 visa program’s rules on employment.121
 
C. Unaccredited Schools
DHS approves unaccredited schools under certain conditions.122 However, in 2011, several investigations highlighted whether such schools were really just visa mills.  Indeed, unaccredited schools have been a breeding ground for widespread immigration fraud.  Some schools “usher in thousands of foreign students and generate millions of dollars in profits because they have the power, bestowed by the U.S. government, to help students get visas.”123

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