A. Academic Students-F Visa

1. Criteria-Statutes/Regulations-INA §101(a)(15)(F), 8 U.S.C. §1101(a)(15)(F); 8 C.F.R. §214.2(f), 9 FAM 41.61; 67 Fed. Reg. 76256 (Dec. 11, 2002).

a. Applicant has foreign residence with no intention of abandoning it.

b. Applicant is a bona fide student qualified to pursue a full course of study.

c. Applicant seeks to enter the U.S. as a student "temporarily and solely for the purpose of pursuing such a course of study at an established institution of learning or other recognized place of study in the United States."

d. Applicant will study only at an institution particularly designated by him and approved by the AG in compliance with the SEVIS program. 8 C.F.R. §214.2(f)(1)(i)(A). To maintain their status as an approved school, the school must meet certain reporting and other requirements.

e. Will not attend a public elementary school or publicly funded adult education program and will not attend a public secondary school unless s/he attends the secondary school for a period not in excess of 12 months and demonstrates s/he has reimbursed the school board the full, unsubsidized per capita cost of the education. INA §214(m)(1), 8 U.S.C. §1184(m)(1).

f. Family members, on F-2s, may not attend school without c/s to F-1, except that a child may attend elementary through twelfth grade. 8 C.F.R. §214.2(f)(15).

2. Criteria-In practice, an applicant must:

a. Meet all the above requirements;

b. Present a SEVIS Form I-20 issued in her name by a school approved by the Service. 8 C.F.R. §214.2(f)(1)(i)(A).

c. Have sufficient financial support, 22 C.F.R. §41.61(b)(1)(ii), e.g., I-134. 9 FAM 41.61 N6.1-1 ["Sufficient funds to cover expenses" means "the applicant is required to establish the unlikelihood of becoming a public charge ... and of resorting to unauthorized U.S. employment to maintain solvency"]. Must show availability of funds, not possession of them. Officer can consider currency restrictions in home country.

d. Be proficient in English or will receive training to make her proficient. The school may explain, where appropriate, why English proficiency is not required. 9 FAM 41.61 N5.

e. Intend to depart the U.S.

f. Have sufficient academic credentials to attend particular institution. 9 FAM 41.61 N7.

g. Maintain a full course of study which is defined as: [8 C.F.R. §214.2(f)(6)]

(1) Postgraduate study certified by DSO as full course.

(2) Undergraduate college or university-12 semester/ quarter hours if all undergraduates are enrolled for 12 hours and are charged full tuition or considered full-time for other administrative purposes.

(3) Post-secondary non-vocational (e.g., junior college, fine arts school)-12 hours; credits must be accepted by at least 3 schools.

(4) Study in any other language, liberal arts or fine arts non-vocational program-18 hours in classroom or 22 hours if mostly lab.

(5) Elementary, middle school, or academic high school.

(6) On-line Classes. An F-1 student may only take one class or three credits on- line or through distance education per term and no online language study program. 8 C.F.R. §214.2(f)(6)(i)(G).

(7) Reduced Course Load. A student may not reduce her course load below a full course of study as outlined above without first obtaining permission from the DSO and then may only reduce it, at a minimum, to 6 semester/ quarter hours or half the clock hours of a full course of study.

3. Commuter students from Canada and Mexico may attend school part time or full time in the U.S. as F-3 visa holders as long as they are not residing in the U.S. INA §101(a)(15)(F)(iii); 22 C.F.R. §41.61(b)(1)(iii).

4. Consular Procedure-Consul issues F-1 visa. Consular officers must verify the SEVIS I-20 and the data in the SEVIS system before issuing a visa.

5. Duration of status. All students will be admitted a maximum of 30 days before program start date. 8 C.F.R. §214.2(f)(5)(i);[Suggesting a possibility of extension to 90 days].

6. SEVIS Identification. Students are issued SEVIS I-20 identification. 8 C.F.R. §214.2(f)(1)(i)(A) [I-94 still required as well]. Spouse and children issued separate SEVIS I-20s. 8 C.F.R. §214.2(f)(3).

a. SEVIS I-20 not surrendered if temporarily departing.

b. SEVIS I-20. endorsed with duration of status.

7. Transfers-8 C.F.R. §214.2(f)(8).

a. Transfer Requirements-Can transfer if:

(1) Bona fide student;

(2) Has been pursuing full course of study;

(3) Intends to pursue full course;

(4) Has financial ability to attend transferred school; and

(5) Begins classes at transferred school within 5 months of transferring out of current school or within 5 months of the program completion date whichever is earlier.

b. Transfer Procedures-8 C.F.R. §214.2(f)(8)(ii).

(1) Student must first notify the current school and then obtain a properly completed SEVIS I-20 A/B from school he intends to transfer to.

(2) The student must notify the DSO at the school he has transferred to within 15 days of the start date listed on the SEVIS Form I-20. The transfer is effected when the transfer school notifies SEVIS that the student has enrolled in classes within 30 days as required by 8 C.F.R. §214.3(g)(3)(iii).

(3) Cannot transfer schools if student not pursuing a full course of study or is engaged in unauthorized employment unless reinstated to student status. 8 C.F.R. §214.2(f)(8)(i).

(4) Failure to comply with transfer procedure renders student out of status.

(5) May not transfer to public elementary or publicly funded adult education program. May not transfer to public secondary school unless student pays for secondary school and only attends a maximum of 12 months. INA §214(m)(2), 8 U.S.C. §1184(m)(2).

8. Withdrawing from Educational Institution. An F-1 authorized to withdraw from school is given 15 days to depart. However, if the F-1 fails to obtain permission to withdraw, s/he is not afforded the 15-day grace period to depart. 8 C.F.R. §214.2(f)(5)(iv); 67 Fed. Reg. 76256, 76262 (Dec. 11, 2002)

9. Employment

a. No employment 1st academic year (i.e., 9 months) except for on-campus work which can begin as soon as the student is admitted in F-1 status. 8 C.F.R. §214.2(f)(9)(ii). Students who transfer after being given work authorization need new authorization to work. After 1st year a student in good standing may obtain employment off campus as determined by the DSO if:

(1) Severe Economic Hardship-A student may obtain work authorization where there is severe economic hardship caused by unforeseen circumstances beyond the student's control.

(2) Internship with International Organization-A bona fide student offered employment by a recognized international organization must apply for employment at the Service Center on Form I-762 with fee.

b. On-Campus Employment

(1) lst year prohibition is inapplicable. 8 C.F.R. §214.2(f)(9)(i).

(2) Includes work performed on school premises (including on location commercial firms which provide services for students such as the student bookstore) or at an off-campus location which is educationally affiliated with the school. c. Off-Campus Employment

(1) Employment Due to Emergent Circumstances-The Commissioner may suspend all or some of the requirements of on and off campus employment by notice in the Federal Register.

d. Practical Training.

(1) Training available when:

(a) Full-time student for at least one academic year which is normally 8-9 consecutive months (unless a graduate student in a special program);

(b) It is related to a course of study;

(c) It is employment for the purpose of practical training; and

(d) It is not for English language training.

(2) Procedure-8 C.F.R. §214.2(f)(10). There are two types of practical training:

(a) Curricular Practical Training, 8 C.F.R. §214.2(f)(10)(i):

i) This type of training is defined to be alternate work/study, internship, cooperative education or any other type of required internship or practicum.

ii) If student obtained one year or more of full time curriculum practical training then post-completion training is not available.

iii) Cannot accept any practical training unless student for one academic year or if in language program prior to completion of studies.

iv) A job offer is required to apply for curricular practical training.

v) Must submit to DSO I-538 and SEVIS I-20 I.D. copy.

(b) Optional Practical Training, 8 C.F.R. §214.2(f)(10)(ii):

i) Optional practical training may be exercised in one of four circumstances:

a) during student's annual vacation and at other times when school not in session;

b) while school is in session as long as it does not exceed 20 hours per week;

c) after completion of all course requirements (excluding thesis or equivalent) for bachelor's, master's or doctoral degree program; and

d) after completion of the course of study.

ii) Limited to 12 months. Must complete training within 14 months of graduation.

iii) To obtain practical training the DSO must make a recommendation for OPT under SEVIS. The DSO must indicate whether it will be part time or full time training and note the start and end dates.

iv) The student cannot get employment authorization without filing an I-765 and cannot begin OPT without the employment authorization. 8 C.F.R. §214.2(f)(11). No job offer is required to apply for optional practical training.

(c) Unused practical training. Unused portion of practical training cannot be used at a later time, O.I. §214.2(f)(10)(viii), unless "reserved" in accordance with O.I.s.

(d) Termination of practical training is automatic when student transfers to another school.

e. Temporary Absence Abroad with Work Authorization:

(1) If re-entering on SEVIS I-20 I.D. with EAD it is valid only if the student is admitted to attend the same school.

(2) If student has unexpired EAD for post-completion practical training s/he may resume employment as long as EAD is accompanied by SEVIS I-20 signed within last 6 months by DSO.

(3) Student must present the EAD at the port of entry upon return.

(4) If student has completed studies and is on optional practical training, s/he must present a valid F-1 visa when returning from an absence abroad

f. Obtaining a Social Security Card. The SSA has established procedures for students to apply for SSN or replacement card. Policy Instruction, SSA, EM-02093 (Aug. 8, 2002). The student must submit evidence of age and identify, a I-20, a current I-94 and evidence of authorization to work and full-time attendance at school which may include an original letter from the DSO providing that the student is authorized to work on campus and currently enrolled in a full course of study. Id.

10. Out-of-Status Problem-8 C.F.R. §§214.2(f)(5), (f)(6). If student is employed without authorization, or not pursuing full course of study, or transfers schools without permission or fails to complete a full course of study in time and is ineligible for a program extension, s/he is out of status and subject to deportation. A student who drops below a full course of study without prior approval of the DSO is considered out of status. 8 C.F.R. §214.2(f)(6)(iii). A student who is out of the country for more than five months should be terminated from the SEVIS database. 8 C.F.R. §§214.2(f)(4), (f)(8)(i). If the student wishes to reenter, a new SEVIS I-20 must be issued for the "initial attendance." Prior regulations were not applied to bar status to student who had minor disruptions in his full course of study. Students considered to be in status even if not engaged in full course where:

a. They remain for summer or annual vacation, so long as they are eligible and intend to register for the next term. 8 C.F.R. §214.2(f)(5)(iii).

b. They are compelled by illness or other medical condition to interrupt studies or reduce course load below full course as long as the total time does not exceed 12 months. 8 C.F.R. §214.2(f)(6)(iii)(B).

c. They take less than a full course of study for valid academic reasons on advice of DSO.

d. They take fewer than a full course to complete their program in the final term. 8 C.F.R. §214.2(f)(6)(iii)(C).

e. They enroll in more than one DHS approved school where joint credits total full time. 8 C.F.R. §214.2(f)(6)(iv).

11. Change of Status from B-1/B-2-8 C.F.R. §§214.2(b)(7), 248.1(c)(3). A person entering the U.S. as a B-1/B-2 can no longer begin to attend school as an F-1/M-1 without first obtaining a change of status in the U.S. or an F-1/M-1 visa abroad. If a student with a B-1/B-2 begins to attend school without an F-1/M-1 or a c/s he will be denied a change of status to an F-1/M-1. This prohibition only applies to study prior to approval for B-1/B-2s. Id.

12. Overstays-F-1s are not considered an overstay for purposes of INA §222(g) unless a CIS officer or IJ has made a determination that a status violation has occurred.

13. Reinstatement. Students may be reinstated by filing I-539 accompanied by a properly completed SEVIS Form I-20 indicating the DSO's recommendation for reinstatement and demonstrating that: (1) S/he has not been out of status for more than 5 months or that there were exceptional circumstances and that the request was filed as promptly as possible; (2) S/he does not have a record of repeated or willful violations of Service regulations; (3) S/he is currently pursuing or intending to pursue a full course of study; (4) S/he has not engaged in unauthorized employment; (5) S/he is not deportable on any ground other than being out-of-status; and (6) S/he establishes to the satisfaction of the Service either that the violation resulted from circumstances beyond her control such as serious injury or illness, closure of the institution, a natural disaster or inadvertence, oversight or neglect by the DSO or the violation relates to reduction in the student's course level that the DSO could have authorized and that failure to reinstate will result in extreme hardship to the student. 8 C.F.R. §214.2(f)(16). Reinstatement is generally a discretionary matter.

14. Extension of Stay.

a. A student is not required to apply for E/S as long as s/he is maintaining status and making normal progress toward completing the educational objective. 8 C.F.R. §214.2(f)(7).

b. Extension of status must be requested where studies not completed timely (e.g., if supposed to be completed in 2 years on SEVIS I-20 but student needs additional 6 months).

c. The student must apply for the extension before the end-date on his program and his failure to do so would make the student o/s but subject to application for reinstatement. 8 C.F.R. §214.2(f)(7)(iii). If student is unable to complete program within period and is ineligible for a program extension s/he is out of status and must apply for reinstatement.

15. Family may follow to join F-1 if the F-1 student is or will be within 30 days enrolled in a full course of study or is engaged in approved practical training.

16. Strikes and Lockouts-Students EAD is automatically suspended during a strike or lockout. 8 C.F.R. §214.2(f)(14).

17. Name and Address Registration. 8 C.F.R. §214.2(f)(17). The change of address requirement under INA §265 is satisfied by SEVIS notification within 10 days even though the school is not required to update SEVIS data until 21 days after the change. Any student who has gone through special registration and moves must file a change of address on form AR-11.

18. SEVIS/Data Collection. Under IIRIRA §641, Congress now requires approved institutions for F programs to keep computerized data on students and exchange visitors as well as accompanying family members that includes their current address and status at the institution.

19. School Certification. The application for School Certification (I-17) must now be submitted to the Student and Exchange Visitor Program (SEVP) of ICE, instead of to CIS.

20. In-State Tuition and Undocumented Status. Certain states, by statute, permit undocumented students to gain resident tuition status: California, Illinois, New York, Oklahoma, Texas, Utah and Washington. Certain states, by statute, prohibit undocumented students from obtaining in-state tuition: Alaska, Mississippi.

B. Vocational Students-M Visa. INA §101(a)(15)(M), 8 U.S.C. §1101(a)(15)(M); 8 C.F.R. 214.2(m), 67 Fed. Reg. 76256-80 (Dec. 11, 2002). Similar to F-1 except at a vocational/ non-academic institution.

1. Full Course Defined-8 C.F.R. §214.2(m)(9).

a. Study in community/junior college for 12 semester/quarter hours leading to a specific educational and/or vocational objective.

b. Study at a post-secondary vocational/business school (other than language training program) which confers a degree or has its credits accepted by 3 accredited academic institutions. Twelve hours of instruction/week or its equivalent are required.

c. Study in vocational or other nonacademic curriculum (including a language training program taken at the school to further vocational training); 18 hours/week if predominantly classroom or 22 hours if predominantly shop/lab.

d. Study in vocational or other nonacademic high school curriculum for not less than minimum number of hours for normal progress toward degree.

e. No On-Line Courses. Distance education or online courses cannot count toward an M-1 student's full course of study unless the course requires the student's physical presence. 8 C.F.R. §214.2(m)(9)(v).

f. Reduced Course Load. M-1 can take a reduced course load but only for a maximum aggregate of 5 months and only because of medical reasons. 8 C.F.R. §214.2(m)(9)(vi).

2. Commuter students from Canada and Mexico may attend school part time or full time in the U.S. as M-3 visa holders as long as they are not residing in the U.S.

3. In order to obtain M must present SEVIS Form I-20 to consular officer, 22 C.F.R. §41.61(b)(1), and meet same criteria as F.

4. Admitted for time necessary to complete course + 30 days, or for 1 year, whichever is less.

5. Extension of Stay. Can cumulatively obtain extensions up to 3 years (+30 days) from the original start date to complete program. 8 C.F.R. §214.2(m)(10).

6. Cannot begin vocational studies until student enters the U.S. with the M-1 visa or c/s to M-1. 8 C.F.R. §214.2(b)(7) [Cannot begin program on B-1/B-2]. And a c/s to M-1 will be denied if B-1/B-2 enrolled in course of study prior to obtaining the c/s. 8 C.F.R. §248.1(c)(3). This prohibition only applies to study prior to approval for B-1/ B-2s.

7. SEVIS/Data Collection. Under IIRIRA §641, Congress now requires approved institutions for M programs to keep computerized data on students and exchange visitors and their accompanying family members that includes their current address and status at the institution. The schools have been provided an internet site to access SEVIS at www.ice.gov/graphics/enforce/imm/imm_sevis.htm. 8 C.F.R. §214.12(b)(1).

8. Family Members. Must individually obtain SEVIS Form I-20s. 8 C.F.R. §214.2(m)(3). Cannot obtain employment. Cannot engage in full time study unless it is a child attending primary or secondary school. 8 C.F.R. §214.2(m)(17). Can only obtain an extension of stay if M-1 obtains extension. 8 C.F.R. §214.2(m)(10)(iii).

9. Reinstatement. A student may ask for reinstatement on I-539 to CIS. It may be considered only if the student: (1) was not out of status for more than 5 months at the time of filing the request; (2) does not have a record of repeated or willful violations of Service regulations; (3) is currently pursuing or intends to pursue a full course of study; (4) has not engaged in unlawful employment; (5) is not deportable other than being out-of-status; and (6) establishes that the violation of status resulted form circumstances beyond his control such as illness, injury, natural disaster, closure of the institution or negligence by the DSO or the violation relates to a reduction in the student's course load that would have been within a DSO's power to authorize. 8 C.F.R. 214.2(m)(16).

10. Differences from F-l

a. Can only be authorized to reduce course load for medical reasons and only for a maximum aggregate period of five months.

b. No online courses or distance courses permissible unless person is required to be physically present for class.

c. Can only attend school with extensions for a maximum of 3 years.

d. Can transfer schools only in first 6 months unless reason for not being able to remain at present school was "due to circumstances beyond the student's control." And must get DHS permission prior to transfer on I-539. 8 C.F.R. §214.2(m)(11).

e. Cannot change educational objectives. 8 C.F.R. §214.2(m)(12).

f. Cannot accept employment, 8 C.F.R. §214.2(m)(13), except practical training. But practical training may only be obtained after completion of study. 8 C.F.R. §214.2(m)(14).

g. Cannot change to H status if basis of H was training or education received as M- 1 student. 8 C.F.R. §248.1(d). Nor can student's request to change nonimmigrant status be granted to M if student is doing it to ultimately qualify for H. 8 C.F.R. §248.1(c). M also cannot change to F. 8 C.F.R. §248.1(c). However, none of these regulations apply to M-2s.

C. Exchange Visitor-J Visa. 8 U.S.C. §§1101(a)(15)(J), 1182(e).

1. Nonimmigrant visitor who has no intention of abandoning foreign residence who:

a. Is a bona fide trainee [22 C.F.R. §62.22], student [22 C.F.R. §§62.23, 62.25], professor or research scholar [22 C.F.R. §62.20], short-term scholar [22 C.F.R. §62.21], non-academic specialist [22 C.F.R. §62.26], foreign physician [22 C.F.R. §62.27], international visitor [22 C.F.R. §62.28], teacher [22 C.F.R. §62.24], government visitor [22 C.F.R. §62.29], camp counselor [22 C.F.R. §62.30], au pair [22 C.F.R. §62.31], and summer student in travel/work program [22 C.F.R. §62.32],

b. Is entering U.S. not more than 30 days before the report or start date to participate in an exchange visitor program that has been designated by the DOS (formerly U.S. Information Agency), 8 C.F.R. 214.2(j)(1)(ii) and whose

c. Participation includes such purposes as teaching, studying, observing, conducting research, consulting, receiving training (e.g., student to do post-graduate work; scholars doing research; medical students). Note: One way to determine intention-Is training in field which can be utilized in foreign country? 9 FAM 41.62 PN3.1-3.12;

d. Has sufficient funds and fluency in English. 22 C.F.R. §§41.62(a)(2) and (a)(3).

e. After Sept. 1, 1994 maintains sufficient medical insurance for accident and illness for participant and J family members in a minimum amount of $50,000 per accident or illness. 22 C.F.R. §62.14.

f. Guidelines set forth in 9 FAM 41.62 N5, 22 C.F.R. Part 62.

g. Au Pair Program. 22 C.F.R. §62.31. The program permits youths from abroad to be placed with American host families seeking child care.

2. B-1 In Lieu of J-1. Certain visitors to the U.S. may have their travel funded by the U.S. government but do not fall within the J-1 category.

3. Two-Year Foreign Residency Requirement.

a. Certain J visa holders are subject to a requirement that they must return to their home country or country of last residence upon completion of their training in the U.S. before they are eligible to adjust status, apply for an immigrant visa, or apply for an H or L visa, or change status inside the U.S. (except for change to A or G, or except for change to H-1B for physicians receiving waivers on the basis of a three-year waiver job). INA §§212(e), 214(l), and 248, 8 U.S.C. §§1182(e), 1184(l), and 1258; 22 C.F.R. §41.63. Those J visa holders subject to this two-year foreign residency requirement are persons:

(1) Whose participation "was financed in whole or in part, directly or indirectly, by an agency of the government of the U.S. or by the government of his nationality or last residence";

(2) Who at the time of admission or acquisition of status was engaged in a field which was on the DOS skills list. The most recent "skills list" governing programs beginning on or after Mar. 17, 1997 is found at 62 Fed. Reg. 2447-2516 (Jan. 16, 1997), and should also be in the Appendix to O.I. §§212.8(e), 214.2(j)(7), 9 FAM 41.62, Exhibit II; or

(3) Who came to the U.S. or acquired J status after Jan. 10, 1977 to receive graduate medical education or training. INA §212(e), 8 U.S.C. §1182(e).

b. A person subject to the two-year foreign residency requirement is ineligible for an immigrant visa/adjustment of status, change of status (except as to A and G categories), or to be granted an H or L visa unless he returns home and physically resides in his country for 2 years following departure from the U.S. or obtains a waiver.

c. A person is subject to the two-year foreign residency requirement even if he obtained the J visa by fraud

4. Waivers of 2-year requirement. 8 C.F.R. §§212.7(c), 1212.7(c); 22 C.F.R. §41.63(a)(2)-(g)

Basis for waiver:

(1) Possible Persecution-"Would be subject to persecution on account of race, religion or political opinion."

(2) Exceptional Hardship-Departure from U.S. would impose exceptional hardship on USC/LPR spouse or child..

(3) No objection waiver.

(4) Request by U.S. Agency.

(5) International Medical Graduate-INA §214(l), 22 C.F.R. §41.63; 8 C.F.R. §212.7(c)(9). A FMG may obtain a waiver through a recommendation issued by an interested state or federal agency interested in facilitating the physician's employment in a designated medically underserved area.

6. General Procedures for Js:

a. SEVIS/Data Collection. Under IIRIRA §641, Congress now requires approved institutions for J programs to keep computerized data on students and exchange visitors and their accompanying family members that includes their current address and status at the institution. The exchange programs have been provided an Internet site to access SEVIS at www.ice.gov/graphics/enforce/imm/imm_sevis.htm. 8 C.F.R. §214.12(b)(1).

b. Transfer or change of category to other J programs:

(1) Transfers are no longer done through INS with I-589. DOS will assume responsibility through responsible school officials on SEVIS DS-2019.

(2) Change of program category will be denied unless transfer "is clearly consistent and closely related to the participant's original exchange objective." 22 C.F.R. §62.41(a) [May grant change from research scholar to student, 22 C.F.R. §62.41(b)].

c. Period of stay:

(1) Different times specified for different fields.

(a) Post-Secondary Student-time needed to complete degree + 18 months practical (academic) training. 22 C.F.R. §62.23(f)(4).

(b) Post Doctoral Degree-degree plus up to 36 months academic training, granted in increments of up to 18 months at a time. 22 C.F.R. §62.23(f)(4).

(c) Business/Industrial trainees-18 months.

(d) Professor and Scholars-limit of 3 years with an extension for additional 3 years given in "exceptional or unusual circumstances." However, certain sponsors, most notably NIH, have been given permission to issue J-1s in this category for the full 6 years.

(e) Short Term Scholars-6 months.

(f) Flight School Trainees-24 months.

(g) Summer Work/Travel-4 months.

(2) Admission and Extension of Stay.

(a) Admission for D/S on I-94. Duration of status is defined as the completion of the J program + 30 days.

(b) Extension of stay are achieved in one of two ways:

i) For periods up to the maximum period of authorized stay for the particular J-1 category, the Responsible Officer of the J-1 program is authorized to grant the stay without coming to the DOS for approval.

ii) For extensions beyond the maximum period authorized for the program up to 18 months, the, RO/ARO Officer must file with DOS a request for an "Extension Beyond the Maximum Duration of Program Participation" through SEVIS.

(d) Timing for Request. A request for an extension must be filed at least 60 days prior to expiration of the current SERVIS DS-2019. 61 Fed. Reg. 29285-287 (June 10, 1996).

(e) Overstay. A J-1 (except certain FMG's who have applied for §212(e) waiver) are subject to the requirements of INA §222(g) that result in cancelling visas of persons who overstay but only if CIS or IJ have made a status violation determination or their J-1 requires them to leave on a date certain (as opposed to D/S). A J-1 overstays for other purposes if s/he stays beyond the 30- day grace period for J-1's.

d. Full course of study for Js at colleges and universities:

(1) Full course defined by "the accredited educational institutions in which the student is registered." 22 C.F.R. §62.2.

(2) The DOS allows numerous exceptions to the full course of study rule ranging from medical problems to a bona fide academic reason presented to the responsible officer. 22 C.F.R. §62.23(e).

e. Employment:

(1) Method of Obtaining Employment. Employment must be authorized in writing by the RO/ARO prior to commencement of employment either by listing the source of funding on the SEVIS DS-2019 or by writing a separate letter authorizing the specific employment for periods of up to one year at a time.

(2) Students-22 C.F.R. §62.23(g).

(a) Employment limited to on campus if pursuant to scholarship, fellowship or assistantship or off-campus if it is a summer work/travel exchange program or if it is necessary because of serious, urgent and unforeseen economic circumstances that have arisen since acquiring exchange visitor status.

i) Participation in summer work/travel (SWT) exchange program is only available to student s pursuing a degree or full-time course of study at an accredited post-secondary institution.

(b) Employment is only available to students in good academic standing, who continue in a full course of study, and who have been approved by school officer. Employment may not exceed 20 hours per week except during official school breaks and annual vacation.

(c) DOS has suspended certain requirements governing program status and on-campus and off-campus employment for J-1 students whose means of financial support is from Indonesia, South Korea, Malaysia, Thailand and the Philippines. 63 Fed. Reg. 34276-77.

(3) Academic (practical) training.

(a) Employment for academic training must commence within 30 days of completion of studies. 22 C.F.R. §62.23(f)(2)(ii). This requires job offer within that period, not actual commencement of work.

(4) Employment of Spouse or Child. Only if it is not for support of principal J-1, 8 C.F.R. §214.2(j)(1)(v), and spouse is not also a J-1. Employment request is filed on I-765 and employment is authorized for the length of J-1's stay or 4 years, whichever is shorter.

f. Reinstatement Into J-1 Status. 22 C.F.R. 62.45.

(1) Technical Violations. These violations include: (i) failure to extend the IAP-66 in a timely manner due to inadvertence or neglect; (ii) failure to conclude a transfer of program prior to the expiration on the IAP-66 due to delay, oversight, inadvertence or neglect; (iii) failure to receive prior approval for customary honorarium.

(2) Substantive Violations. These violations include: (i) failure to maintain valid program status for more than 120 days beyond the end date of the SEVIS DS-2019; (ii) failure to maintain a full course of study under 22 C.F.R. §62.2 without prior consultation with school.

(3) Violations Precluding Reinstatement. 22 C.F.R. §62.45(f). These violations include: (i) knowingly or willful failure to obtain or maintain required health insurance while in U.S.; (ii) engaged in unauthorized employment; (iii) suspension or termination from the most recent exchange program; (iv) Failed to maintain status for more than 270 days; (v) received a 212(e) waiver; and (vi) failed to maintain CIPRIS fees.

g. Estoppel. If person issued J visa due to INS misinformation when they could have obtained another visa without 2-year requirement-estoppel granted.

h. Ineligible for suspension even if obtained INA §212(e) waiver if doctor. 8 U.S.C. §l254(f).

7. Spouses and Children (J-2)-also subject to foreign residency requirement. 8 C.F.R. §212.7(c)(4). May be subject to requirement even if they enter U.S. after spouse completes program with 2-year foreign residency requirement if they obtained visa as spouse and children of applicant. However, if J-1 spouse has fulfilled the 2-year foreign residency requirement the J-2 spouse and children may not be subject to it.

8. Exchange Visitor Program Designation, Suspension, And Revocation Board -Procedures for reprimanding, probating, revoking or suspending J program for willful violation, negligent disregard, repeated failures, paperwork failures, or disrepute. 22 C.F.R. §§62.50-.62. The regulations provide for graduated sanctions and procedural hearings. 22 C.F.R. §§62.50-.62.

D. H-3 Visa. INA §101(a)(15)(H)(iii), 8 U.S.C. §1101(a)(l5)(H)(iii); 8 C.F.R. §214.2(h)(7).

1. Definition. Temporary worker invited by an individual or organization for purposes of receiving instruction and training other than to receive graduate medical education or training. The training program must be one "that is not designed primarily to provide productive employment."

a. Must have foreign residence to which s/he must return.

b. Regulatory criteria for H-3 are: 8 C.F.R. §214.2(h)(7)(ii)(A):

(1) Proposed training not available in alien's home country;

(2) Beneficiary will not be placed in a position in which citizen and resident workers are regularly employed;

(3) No productive employment unless it is incidental and necessary to the training and pursuing a career outside the U.S.

(4) The training will benefit the beneficiary in pursuing a career outside the U.S.

2. Admission and Extension:

a. Admitted for length of training program, but in no event longer than 2 years.

b. The approval of a permanent labor certification or the filing of a preference petition by the same employer for the same or a different job is grounds to deny extension of training program. 8 C.F.R. §214.2(h)(16)(ii).

c. Must file application by employer on I-129. Can have multiple beneficiaries. 8 C.F.R. §214.2(h)(2)(ii).

7. Special Education Exchange Program-I.A.90 §223; 55 Fed. Reg. 2606, 2628 (Jan. 26, 1990); 8 C.F.R. §214.2(h)(7)(iv).

a. Extends exchange status to participants in a special education program which provides for practical training and experience in the education of children with physical, mental or emotional disabilities.

b. Limited to 18-month stay and limited to 50 visas/status per year.