by JPeters | January 16, 2024 4:01 pm
United States Citizenship and Immigration Services[1] (USCIS) recently updated its policy manual guidance[2] for the F and M nonimmigrant visa categories. These categories are for noncitizens — as defined in section 101(a)(3) of the Immigration and Nationality Act[3] (8 USC 1101(a)(3)) — seeking to study in the United States.
The F-1 nonimmigrant academic student visa is for individuals who wish to enter the United States as a full-time student at a “college, university, seminary, conservatory, academic high school, private elementary school, other academic institution, or in a language training program” located in the United States. The M-1 nonimmigrant classification is for individuals who wish to enter the United States as a student in an “established vocational or other recognized nonacademic program, excluding language training programs.”
The updated guidance addresses the agency’s role in adjudicating applications for employment authorization, change of status, extension of stay, and reinstatement of status. International students and educational institutions alike have welcomed these changes.
Eligibility
The law — section 214(b) of the Immigration and Nationality Act (INA) — stipulates that to be eligible for the F or M visa, students must state their intention to leave the United States (i.e. to not seek immigration status) following their temporary periods of stay. This usually means leaving the United States after they finish their degree program or other training. The law also says that noncitizen students must “have a foreign residence they do not intend to abandon” to be eligible.
In the revised guidance[4], USCIS clarifies that the requirement to “have a foreign residence” can be fulfilled if that residence is with parents and the student intends to depart the United States after the educational program is complete. “The fact that this intention may change is not sufficient reason to deny a visa,” the revised guidance states. “Given that most student visa applicants are young, they are not expected to have a long-range plan and may not be able to fully explain their plans at the conclusion of their studies. You must be satisfied at the time of the application for the visa that the applicant possesses the present intent to depart at the conclusion of their approved activities.”
Employment
In the policy manual update, USCIS also creates an easier regulatory path for noncitizen student employment — on campus, off campus, and after graduation. Of particular importance for employers seeking young talent, students in the United States on an F-1 visa may now seek an extension of “optional practical training” (OPT) based on their degree in a science, technology, engineering, or mathematics (STEM) field and be employed by startup companies, as long as the employer “adheres to the training plan requirements, remains in good standing with E-Verify[5], and provides compensation commensurate to that provided to similarly situated U.S. workers,” among other requirements.
The updated guidance further clarifies that alternative forms of compensation — like stock options — may be permissible during a STEM OPT visa extension as long as the employer provides comparable compensation to U.S. employees in similar positions.
Timeline
The current update retains the changes made by USCIS in February 2023, which allows F and M students to apply for their student visas up to 365 days before the start of their academic or vocational program and to enter the country up to 30 days before the start date, as listed on Form I-20[6], Certificate of Eligibility for Nonimmigrant Student Status.
Before this change, students who wanted to study in the United States could only schedule visa interview appointments up to 120 days before the program’s start date. Also, educational institutions could only issue Form 1-20 up to four to six months before the start date. The shortened timeline led to intense demand for visa appointments right before the start of a term or semester.
Form I-20 can now be issued by educational institutions twelve to fourteen months before the program start date, making it much easier for noncitizen students to schedule earlier interview dates.
Stay current
For more information on USCIS guidance about F and M nonimmigrant student classifications, refer to Volume 2, Part F[7] of the Policy Manual. Stay informed and explore the details to ensure compliance with the latest policies. Also, educational institutions can learn more about administering nonimmigrant student programs through the Student and Exchange Visitor Program[8] (SEVIS).
If you have any questions about USCIS policies and your international student or employee recruitment programs, don’t hesitate to contact Orr & Reno for assistance.
About the author: Emily A. White[9]
Source URL: https://orr-reno.com/uscis-policy-updates/
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