2004 © David Weissbrodt and Laura Danielson

International students make up a significant, and growing, percentage of students in U.S. colleges and universities. During the 2000-2001 school year, more than 500,000 foreign students were enrolled at U.S. institutions. These students contribute billions of dollars to the U.S. economy each year. Three nonimmigrant classifications are available to individuals who come to the U.S. to study: the F-1 status for academic students, the M--1 status for vocational or nonacademic students, and the J-1 status for exchange visitors. The focus of this chapter is the F-1 status, which is the one most commonly sought by students.

To qualify for F-1 status, students must be entering the U.S. temporarily and solely to pursue a full course of study in an academic program. Unlike many other nonimmigrants, persons with F-1 status frequently remain in the United States for a number of years. The regulations for F status, at 8 C.F.R. § 214.2(f), address some of the issues which are likely to arise during a student's stay in the United States. Regulations governing the M--1 and J-1 classifications are similar to those governing the F-1 classification. Some of the key differences between the classifications are described in section 7-9, infra.

In 2002, Congress created a new status for "border commuter" students. INA § 101(a)(15)(F), (M). This status allows students who reside in Canada or Mexico to enter the United States in order to attend school full-time or part-time. Previously, part-time students were not eligible for F or M status, but ports of entry would admit such students on B visitor visas. The INS ordered ports to stop this practice in June 2002, abruptly terminating many students' studies. In response to public outcry, immigration officers temporarily granted humanitarian parole to students so that they could complete their current term. The Border Commuter Student Act (116 Stat. 1923) regularizes these students' status. The requirements for border commuter student status are similar to those for other F or M students, except that such students are granted entry only for their current term and may not engage in employment in the U.S. 8 C.F.R. § 214.2(f)(18), (m)(18).

It should be noted that nonimmigrants in other classifications are also permitted to study in the U.S., although this cannot be their primary purpose for entry. For example, spouses and children of temporary workers with H status are permitted to study full- or part-time without changing to F-1 status. 8 C.F.R. 248.3. Such students will not, however, be able to take advantage of the limited employment opportunities available to those with F-1 status. In addition, many nonimmigrants, including tourists and temporary workers, may engage in part-time studies incidental to the activity for which they were granted status.

The first step for a student who wants to study in the U.S. is to gain admission to a school that has received approval to admit foreign students. Schools that can admit F-1 students include colleges and universities, seminaries, conservatories, academic high schools, private elementary schools, and language schools. Community colleges and vocational schools can accept M-1 students. 8 C.F.R. § 214.3. Previously, the INS approved schools to admit foreign students and imposed certain reporting requirements on these schools. Under the Homeland Security Act, the Bureau of Border Security was given responsibility for tracking foreign students through the Student and Exchange Visitor Information System ("SEVIS") (see § 7-4.5, infra). Most likely the BBS will also be responsible for approving schools to admit foreign students, although the Bureau of Citizenship and Immigration Services may administer other aspects of the foreign student program. Once a school is approved to admit foreign students, it appoints a "Designated School Official" ("DSO"), who handles most of the administrative aspects of the F-1 and M-1 programs with very little involvement from immigration authorities.

To prevent fraud, immigration regulations require all prospective students to apply in writing to the school they wish to attend. Schools may accept only those students whose qualifications meet their admission standards. 8 C.F.R. § 214.3. After accepting a student, the institution completes a Certificate of Eligibility for Nonimmigrant (F-1) Student Status, Form I-20 A-B/I-20 ID, and sends it to the student. (The Form I-20 A-B includes a School Copy and an I-20 ID Student Copy.) The student then applies for an F-1 visa by presenting the I-20 A-B and a nonimmigrant visa application to a United States consulate in the student's home country. Students should also be prepared to present persuasive evidence that they are maintaining a residence abroad to which they intend to return on completion of their studies in the United States. They must also provide documentation showing that they have sufficient funds available to support themselves during their entire course of study. Students may satisfy this requirement by providing affidavits of support from relatives; unlike the affidavit required for permanent residence applications (see § 5-5.1(d), supra.), this affidavit is not legally binding on the sponsor. Moreover, students must demonstrate that they have sufficient English skills for the course in which they are enrolled (unless the course will be taught in another language), or that they will be taking preparatory English classes in the U.S. 22 C.F.R. § 41.61

Students pursuing studies in certain sensitive high-technology students, particularly students at the graduate or post-graduate level, may face heightened scrutiny when they apply for a student visa. In response to concerns that the U.S. is training potential terrorists, the Bush administration proposed special screening procedures for F, M, and J students studying in fields where they would have access to sensitive, but unclassified information. In addition, students from countries designated as state sponsors of terrorism face heightened scrutiny when applying for student visas and have, in some cases, been denied visas.

Once a visa is issued, the student may travel to the United States. Students may enter the U.S. up to sixty days before their studies commence. 8 C.F.R. § 214.2(f)(3). At the port of entry, students present their passport with the F-1 visa stamp and the complete Form I-20 A-B for inspection. Students may also be required to present evidence of financial support and to verify their intent to attend the school that issued the I-20. The inspecting officer will issue a Form I-94, transcribe the student's admission number onto the Form I-20 A-B and return the I-20 ID (Student Copy) to the student. The officer will send the I-20 (School Copy) to the school as a notice of the student's admission to the country. Following implementation of the new Student and Exchange Visitor Information System ("SEVIS"), a record of the student's entry will be transmitted electronically to the school. Universities and other schools generally require students to present their stamped I-20 (Student Copy) to the registrar before starting classes.

Spouses and minor children of students are granted F-2 status. Spouses and children may accompany students to the United States or they may follow later. If family members are accompanying the student, they do not need an I-20 A-B of their own to apply for an F-2 visa, because they are included on the student's I-20 A-B. If the family members are following, the student normally sends them a duplicate Form I-20 A-B to facilitate their application for F-2 visas and entry into the United States. 8 C.F.R. § 214.2(f)(3). The F-2 spouse and children of an F-1 student may not, under any circumstances, accept employment. 8 C.F.R. § 214.2(f)(15).

Students and their family members are generally admitted for the student's "duration of status." "Duration of status" is defined as the period during which the student is pursuing a full course of study in any educational program or is receiving authorized practical training, plus sixty days within which to depart from the United States. 8 C.F.R. § 214.2(f)(5). An F-1 student who continues from one educational level to another, from one educational program to another, and/or from one school to another, remains in status as long as the proper procedures are followed. 8 C.F.R. § 214.2(f)(5). There are a number of requirements for maintaining status. The consequences of failing to adhere to these requirements can include removal, inability to change to another nonimmigrant status or to permanent resident status, and inadmissibility. See § 7-8, infra.

§ 7-4.1 Full Course of Study

Students must be pursuing a full course of study that leads to a specific educational or professional objective. The conditions necessary to satisfy the full course of study requirement vary depending on the academic program involved. For postgraduate or postdoctoral study, or studies at a conservatory or religious seminary, a full course of study is a program certified as such by the school's DSO. An undergraduate student must generally take twelve semester or quarter hours per term, unless fewer hours are required for the student to complete the course of study at that institution in the current term. A primary or high school student must take at least the minimum number of hours per week required by the school for normal progress toward graduation. 8 C.F.R. § 214.2(f)(6)(i).

Students may take fewer than the required number of hours for a full course of study if advised to do so by their DSO because of English language difficulties; unfamiliarity with U.S. teaching methods; improper course level placement; or illness. 8 C.F.R. § 214.2(f)(5)-(6). School officials generally exercise discretion in allowing students to take a reduced course load.

§ 7-4.2 Deadline for Completion of Studies

When it issues an I-20 to a student, a school must state when the student is expected to complete the course of study. In estimating the completion date, schools may add a one-year grace period to the time normally required for a particular course. Students who are unable to complete their degree objectives by this date must apply to the school for an extension of stay. 8 C.F.R. § 214.2(f)(7). After the estimated completion date has passed, a DSO may only grant an extension to a student who has maintained student status and whose inability to complete by the date on the I-20 is caused by "compelling academic or medical reasons." 8 C.F.R. § 214.2(f)(7)(iii). Circumstances that justify an extension include a change of college major, unexpected research difficulties, and documented illnesses. Delays caused by academic problems (academic probation, suspension) are not acceptable reasons for extension. Students who fail to complete their course on time and are ineligible for an extension are considered out of status and must apply for reinstatement to continue their studies (see §7-9, infra). Schools must notify the BBS of an extension by submitting Form I-538 and must give the student a new Form I-20 showing the adjusted completion date.

Following completion of their studies, and any optional post-completion practical training (see § 7-6, infra), students have sixty days in which to depart from the U.S. 8 C.F.R. § 214.2(f)(5).

§ 7-4.3 Transferring or Changing Educational Levels

Students who wish to transfer schools must notify their current school of their intent to transfer and must obtain a new Form I-20 from the new school. The new school notifies the BBS when the transfer is complete. Students remain in status as long as the transfer is properly executed and they continue to make progress towards their educational objectives. Students who have failed to pursue a full course of study at the school they are currently authorized to attend are not eligible to transfer unless they apply to the BBS for and are granted reinstatement to student status. 8 C.F.R. § 214.2(f)(8).

Students who have completed a course and wish to continue their studies at a higher educational level, whether at the same or a different institution, also follow the transfer procedure outlined above.

§ 7-4.4 Vacations and Other Interruptions

F-1 students are considered to be in status during summer vacation if they are eligible and intend to register for the upcoming term. Students at schools that operate on the trimester or quarter system may take any term as a vacation, as long as they take only one vacation term per year, are eligible and intend to register for the next term, and have completed the equivalent of a full academic year before taking the vacation. With the approval of the DSO, students may remain in status if they are forced to interrupt or reduce their course of study because of illness or other medical condition, provided they return to a full course of study upon recovery. 8 C.F.R. § 214.2(f)(5).

§ 7-4.5 Student and Exchange Visitor Information System ("SEVIS")

Because of their numbers and the length of time they remain in the U.S., it is very difficult for immigration authorities to monitor foreign students. While schools are required to maintain records on all foreign students, until recently there was no central repository for most of this information. The 1993 bombing of the World Trade Center raised serious concerns about the activities of foreign students in the U.S. because one of the perpetrators had been a foreign student. In 1996, Congress mandated the creation of a computerized system to track students. IIRIRA § 641. The INS subsequently initiated a pilot test of such a system, which was underway when the September 11, 2001 terrorist attack occurred. At least one of the hijackers involved in that attack entered the U.S. as a student, and two others had applied for student status. Consequently, the USA Patriot Act required full implementation of the program, now known as "SEVIS," by January 2003. By that date, all schools that enroll foreign students must have begun using SEVIS to issue I-20s. 67 Fed.Reg. 34862. The Homeland Security Act made the Bureau of Border Security responsible for SEVIS, and consequently, most aspects of the foreign student program.

SEVIS is designed to facilitate tracking of students, both for security purposes and to help students maintain status. Schools are required to enter information into the Internet-based system about each F-1 or M-1 student they enroll, including the student's name, date of birth, citizenship, current enrollment status, current address, and expected completion date. Schools must also report employment authorizations, disciplinary actions taken as a result of a criminal conviction, and any failure of a student to maintain status. SEVIS replaces most of the paper forms schools previously used to communicate with immigration authorities; it is also used to generate I-20 forms for students.

Subject to some restrictions, F-1 students may seek employment while they are studying. An F-1 student may work on-campus up to 20 hours per week while school is in session and while enrolled as a full-time student. After completing nine months in F-1 status, students may also seek authorization to work off-campus to alleviate an unanticipated economic hardship or for practical training. As of this writing, it appears that the Bureau of Citizenship and Immigration Services will be responsible for granting work authorization to students.

§ 7-5.1 On-Campus Employment

An F-1 student pursuing a full course of study is permitted to engage in on-campus employment as long as the employment will not displace a United States resident. Students may not work more than twenty hours per week while school is in session, but they may work full time during school breaks. "On campus" includes employment with commercial firms which provide services for students on campus, such as book stores or food service companies. 8 C.F.R. § 214.2(f)(9). On campus employment does not include employment with commercial firms which do not provide direct student services, such as a company constructing a school building.

"On campus" employment also includes work for off-campus organizations that are affiliated with the school through the its established curriculum or a contractually funded research program. This arrangement was designed to permit graduate students to conduct research at off-campus locations under the supervision of their professors. Immigration regulations specify that such employment must be an integral part of the student's educational program and be commensurate with the level of study. 8 C.F.R. § 214.2(f)(9).

On-campus employment pursuant to the terms of a scholarship, fellowship, or assistantship is permitted and is deemed a part of the academic program of a student otherwise taking a full course of study. Hence, students assigned teaching or research responsibilities pursuant to the terms of a scholarship or fellowship may carry a reduced course load. Note, however, that the student's total

§ 7-5.2 Off-Campus Employment

F-1 students must obtain permission to engage in off-campus employment, unless the employment is pursuant to a curricular practical training program (see § 7-6, infra.). The BCIS may grant a student an off-campus employment authorization based on severe economic hardship. The employment authorization may be granted in one year intervals up to the expected date of completion of the student's current course of study. 8 C.F.R. § 214.2(f)(9). To be eligible, students must demonstrate that they need to work because of "severe economic hardship caused by unforeseen circumstances beyond the student's control." The rules define the unforeseen circumstances as follows: (1) loss of financial aid or on-campus employment without fault on the part of the student; (2) substantial fluctuations in the value of currency or exchange rate; (3) inordinate increases in tuition or living costs; (4) unexpected changes in the financial condition of the student's source of support; or (5) medical bills or other substantial and unexpected expenses. 8 C.F.R. § 214.2(f)(9).

The rules also require that students: (1) have completed one full academic year (nine months) in F-1 status; (2) be in good academic standing and carrying a full course of study; (3) obtain a recommendation from their DSO in favor of work authorization; (4) obtain an employment authorization document from the BCIS; and (5) work no more than twenty hours per week when school is in session (full-time work is permissible during vacation periods). 8 C.F.R. § 214.2(f)(9).

Immigration regulations allow the Director of the BCIS to temporarily suspend the normal restrictions on employment in emergency circumstances. 8 C.F.R. § 214.2(f)(9)(ii). This rule was implemented to benefit students from certain Asian countries that were severely impacted by the 1998 economic crisis in that region. Students from those countries who were enrolled in U.S. schools as of June 1998 are permitted to work an unrestricted number of hours on- or off-campus, and may take a reduced course load. 75 Interp.Rel. 954.

F-1 students are also permitted to work for recognized international organizations. Students may apply to the BCIS for authorization for such employment by presenting a current I-20 and written certification from the international organization. 8 C.F.R. § 214.2(f)(9)(iii).

Work authorization based on economic necessity is now the only available off-campus work authorization aside from practical training and internships with international organizations. The 1990 Act created a pilot program which allowed students to work off-campus for an employer who complied with certain Department of Labor regulations. The program was allowed to expire in 1994 due to a lack of participation and the INS' determination that this type of student employment was inconsistent with the intent of the F-1 classification.

Practical training is an authorized period of temporary employment which allows students to obtain work experience related to the their course of study. A student who is engaged in authorized practical training remains in status for the duration of the training. There are two types of practical training available: curricular and optional. "Curricular practical training" refers to employment required as part of a course of study. "Optional practical training" refers to employment related to, but not required for, a course of study.

Practical training is available to F-1 students who have been lawfully enrolled on a full-time basis for a minimum of nine consecutive months. 8 C.F.R. § 214.2(f)(10). Exceptions to the nine months requirement are provided for students enrolled in graduate studies which require immediate participation in curricular practical training. 8 C.F.R. § 214.2(f)(10).

§ 7-6.1 Curricular Practical Training

Curricular practical training is undertaken while a student is studying and includes internships, alternate work/study programs, or other work experience. 8 C.F.R. § 214.2(f)(10). It is only permitted if the institution requires such experience for a particular degree. The sponsoring employer must have a cooperative agreement with the school.

The school may authorize employment for the student if satisfied that the work qualifies as curricular practical training and must then notify the BBS by filing a Form I-538. In practice, many DSOs interpret the concept of "internship" liberally to permit foreign students an opportunity to gain work experience. A student who receives one year or more of full-time curricular practical training is ineligible for optional practical training. Consequently, curricular practical training is usually authorized for less than one year. "Full-time" includes both employment off-campus and on-campus.

§ 7-6.2 Optional Practical Training

Students may apply for 12 months of optional practical training directly related to their major area of study. 8 C.F.R. § 214.2(f)(10). Unlike curricular practical training, optional practical training can be authorized only by the BCIS, upon recommendation of the school. Students may take practical training during the school year (up to twenty hours per week), over their annual vacation, while writing a thesis, or after completing their studies, but they must complete all optional practical training no later than fourteen months after finishing their studies. 8 C.F.R. § 214.2(f)(10). The aggregate of all periods of optional practical training may not exceed twelve months of full-time work, even if the student pursues more than one degree.

Students who wish to undertake optional practical training after completing their studies must apply for an Employment Authorization Document (EAD) no sooner than 120 days before commencing employment and no later than sixty days after graduation (student status ends sixty days after graduation if the student is not then engaged in optional practical training). 70 Interp.Rel. 727. The application for an EAD must include a recommendation from the student's DSO. Students may not accept employment until they have been issued an Employment Authorization Document. 8 C.F.R. § 214.2 (f)(11).

Generally, nonimmigrants may change their status to that of an F-1 student if they qualify as students and have a valid I-20A-B Certificate of Eligibility for Nonimmigrant (F-1) Student Status from the school they wish to attend.

A special situation is presented by a change from B-2 visitor for pleasure to F-1 student. Because the B-2 visitor visa is believed to be easier to acquire than the F-1 visa, immigration authorities are skeptical of applications for change from visitor status to student status - particularly during the first 60 days after arrival. Such an application may create the impression that the individual planned all along to study in the United States, and thus obtained the B-2 visa through misrepresentation. Prospective students may legitimately travel to the U.S. on a B-2 visa, however, in order to select a school or to complete an admissions process that requires a personal visit. Students who have not yet received an I-20 from their school may also be permitted to travel to the U.S. on a B-2 visa if their circumstances demand an immediate departure. In these situations, the consular officer will mark the B-2 visa "prospective student." If the B-2 visa is not marked in this way, the holder will not be permitted to change to F-1 status later. 67 Fed.Reg. 18065. Consular officers may require prospective students to show that they would eventually be eligible for F-1 status by producing the supporting documentation required of any applicant for an F-1 visa, including proof of financial resources and of the bona fide intent to return home on completion of studies. Prospective students admitted to the U.S. on a B-2 visa may not begin their course of study until a change to F-1 or M-1 status is approved. 67 Fed.Reg. 18062.

F-1 nonimmigrant students may qualify to obtain a work-related H-1B visa after completing their studies in F-1 status. While exchange visitors with J status are sometimes subject to a two-year foreign residency requirement, there is no such requirement for F-1 students. Students applying for H-1B classification must demonstrate that they are qualified to work in a speciality occupation. An employer seeking to hire a student must file a Labor Condition application with the Department of Labor and must petition to the BCIS for the student's change of classification before the student's status expires. Students who cannot change classifications immediately because the annual cap on H-1B visas has been reached (see § 6-8, supra) may have their student status extended, but may not work until an H-1B visa is available. 64 Fed.Reg. 32146. Some students use the change to H-1B status as an intermediary step towards obtaining permanent residence.

F-1 nonimmigrant students may qualify to adjust directly to permanent resident status through either a relative or an employer. If a student's spouse, child, or parent is a U.S. citizen, the student may acquire permanent residence as an immediate relative. Students may not marry solely to obtain immigration benefits, however (see INA § 275(c)), and recently married students who obtain permanent residence through marriage will have conditional status for two years. INA § 216. For more information on visas for immediate relatives of U.S. citizens see § 5-2.1, supra. Other relationships to United States citizens and to permanent residents may qualify the student to adjust status in a family-sponsored preference category, subject to numerical limitations and waiting periods. See § 5-3.1(a), supra.

Due to the waiting periods for the employment-based preference categories, it is extremely difficult for students to adjust to permanent residence status directly, without obtaining H-1B status. Students seeking permanent resident status through an employer would most likely wish to apply for the second employment-related preference category, for professionals with advanced degrees or exceptional ability in science, art, or business, or the third preference category, for professionals with baccalaureate degrees, skilled workers, and other workers. Both of these preference categories require the employer to obtain labor certification showing that there is no U.S. citizen or resident available who can fill the position. See § 5-3.1(b), supra.

§ 7-8.1 Reinstatement to Student Status

In some circumstances, the BBS will reinstate the status of students who have remained in the U.S. after their status has expired or have otherwise violated the conditions of F-1 status. Reinstatement is only allowed if the student:

(1) makes a written request for reinstatement, accompanied by a properly completed I-20A-B from the school the student is attending or intends to attend;

(2) can establish that the violation of status resulted from circumstances beyond the student's control or that failure to reinstate the student would result in extreme hardship to the student;

(3) is currently pursuing or intends to pursue a full course of study;

(4) has not engaged in unauthorized employment;

(5) provides documentary proof of funding to continue in school and maintain full-time status; and

(6) is not removable on any ground (other than her/his violation of student status). 8 C.F.R. § 214.2(f)(16).

Proposed regulations would further limit the availability of reinstatement by requiring the student to apply for reinstatement within five months of falling out of student status. The rule further provides that reinstatement will not be granted if the violation of status was due to inadvertence, oversight, neglect, or a willful failure on the part of the student or the DSO. 67 Fed. Reg. 34862.

The requirement of not engaging in unauthorized employment can be a particularly difficult barrier to reinstatement, because students are only permitted to work while in status. A student who continues to work after losing status for some other reason is engaging in unauthorized employment and may therefore be unable to obtain reinstatement. The district director's decision to disallow reinstatement is not subject to review, except pursuant to a declaratory judgment action in a U.S. district court.

§ 7-8.2 Re-entry Upon Violation of the Student Status

F-1 students should carefully protect their status, because violations can affect a student's ability to travel to and from the United States in the future.

Unless an F-1 student can obtain reinstatement after losing status, his or her entry visa is subject to automatic cancellation. The student will then need to leave the United States to obtain a new visa for re-entry, usually in his or her country of nationality. INA § 222(g)(2)(A).

Furthermore, since April 1997, students who remain in the U.S. for 180 days or more after the BBS determines that they are out of status (e.g., after the BBS denies reinstatement) are barred from re-entering the U.S. for a period of three years. INA § 212(a)(9)(B)(i)(I). Students who remain in the U.S. for one year or more after being adjudged out of status will not be allowed to re-enter the U.S. for 10 years. INA § 212(a)(9)(B)(i)(II). See § 8-1.2(d), infra.

§ 7-8.3 Adjustment to Permanent Resident Status

Any one who has failed to maintain legal status continuously since entry into the United States is ineligible to adjust to permanent resident status. 8 C.F.R. § 245.1(b). The only exceptions to this rule are if the person is an immediate relative as defined in INA § 201(b), or is a special immigrant described in INA § 101(a)(27)(H), or if the failure was for technical reasons for which the nonimmigrant was not at fault. A student's departure and subsequent re-entry will not eliminate this bar to adjustment of status. 8 C.F.R. § 245.1(c).

This provision does not prevent any individual from leaving the United States and returning on an immigrant visa obtained from a U.S. consulate abroad, if the individual is not subject to the three- and ten-year bars for unlawful presence. The application process may require many months of consular procedures before the visa interview is granted.

§ 7-8.4 Inadmissibility

Included in the Immigration Marriage Fraud Amendments of 1986 was an amendment to INA § 212(a)(19) which increased the sanctions applicable to students who fraudulently or willfully violate the terms of their student status. This amendment provided that any person who fraudulently or willfully misrepresents a material fact in order to procure any benefit conferred by the Immigration and Nationality Act is ineligible to receive a visa and will be denied admission into the United States. Before the 1986 amendment, the language of this provision applied only to individuals who obtained a visa or other documentation or sought to enter the United States through the use of fraud or willful misrepresentation. The prior provision did not include as a ground for inadmissibility or denial of a visa the use of fraud to obtain "other benefit[s] provided under this Chapter." This broad inadmissibility provision could prevent a student from re-entering the United States, either as an immigrant or as a nonimmigrant, if that student misrepresented a material fact in order to qualify for immigration benefits such as permission to be employed or permission to take less than a full course of study.

Students who come to the United States to study at a vocational or nonacademic institution (other than a language training program) are granted M-1 status. The regulations for admission as an M-1 student are similar to those for F-1 students, but M-1 students face more limitations on their activities in the U.S. than do F-1 students. While F-1 students are admitted for duration of status, M-1 students are admitted for the length of their course of studies plus thirty days, or for one year, whichever is less. They may, however, extend their stay if needed to complete a course of study. 8 C.F.R. § 214.2(m)(10). M-1 students are not permitted to engage in employment while studying. They are allowed one month of practical training for every four months of study, to a maximum of six months, but only if equivalent training is not available in their country of origin. M-1 students can transfer schools only during their first six months of study and they may not change their educational objective. Nor are they permitted to change to F-1 status. 8 C.F.R. § 248.1. The M status is not to be used as a means of obtaining employment in the U.S.; hence, M-1 students are not allowed to change to H status in order to work in their field of study. They may change to H status only to work in another field. 8 C.F.R. § 248.1.

J-1 status is granted to individuals who come to the United States under the sponsorship of an exchange program approved by the Department of State. A few such programs are specifically aimed at students, including scholarship programs for college and university students (such as the Fulbright program), secondary school exchange programs, and the Au Pair program. Just as designated school officials have great authority over the status of F-1 and M-1 students, exchange program sponsors are largely responsible for the status of J-1 students.

To be admitted to J-1 status as a college or university student, the nonimmigrant must participate in a program with an accredited university that is substantially financed by the U.S. government, the government of the nonimmigrant's home country, an international organization of which the U.S. is a member, or another source other than the nonimmigrant's personal or family funds. 22 C.F.R. § 62.23. J-1 status has some advantages over the F-1 status, in that spouses and children of J-1 students are permitted to work in the United States, and the students themselves are allowed a longer period of practical training than are F-1 students.

The primary disadvantage of J-1 status is that certain J-1 students are required to live outside the United States for two years after completing their course of study. The foreign residence requirement applies to J-1 holders who: (1) participated in a program which received financing from the U.S. government or from their own government; (2) are nationals or residents of countries designated by the U.S. Department of State as clearly requiring the services of persons engaged in the visitor's field of specialized knowledge or skill (such specializations are published in the form of a skills list); or (3) obtained J status in order to receive graduate medical training in the United States. INA § 212(e).

J-1 status is also available to foreign students between the ages of fifteen and eighteen-and-a-half who participate in secondary school exchange programs. Such programs allow students to stay with a host family in the United States and study at a U.S. school for up to one year. Secondary exchange students are only permitted to engage in sporadic employment, such as babysitting or yard work. 22 C.F.R. § 62.25.

The Au Pair program allows foreign citizens to spend up to two years in the United States to provide child care for a host family and study part-time at a post-secondary institution. Au pairs spend up to forty-five hours per week providing child care and must take at least six credit hours of classes per semester. The host family provides housing, pays at least minimum wage for the child care, and pays part of the au pair's tuition. 22 C.F.R. § 62.31.

Exchange visitors may remain in the U.S. for the duration of the exchange program (as defined by the program sponsor), plus thirty days. J-1 status holders may work for the program sponsor or another designated employer, within the guidelines of the approved exchange program. Spouses or children of J-1 students, who have J-2 status, may obtain permission to work, but only for their own support or to pay for recreational activities and not for the support of the J-1 recipient. 8 C.F.R. § 214.2(j)(1).

Exchange visitors who have received graduate medical training are ineligible to change their status to that of any other nonimmigrant classification. Other persons with J status who are subject to the two-year foreign residency requirement may not change their visa to any other nonimmigrant visa except A or G before complying with the requirement. INA § 248. Exchange visitors may seek waivers of the foreign residency requirement through the U.S. State Department in cases where (1) a U.S. government agency states that a waiver would be in the national interest; (2) the requirement will pose an exceptional hardship to a U.S. citizen or permanent resident spouse, parent, or child of the status holder; (3) the status holder fears persecution on account of nationality, race, religion, political opinion, or membership in a particular social group; or (4) where the status holder's home country does not object to the grant of a waiver. INA § 212(e). Medical graduates are not entitled to a waiver through the fourth category.