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STUDENTS (F-1 and M-1)
Academic and Non-Academic (Vocational)

214(f)(1), (m)(1) the Immigration and Nationality Act of 1990 ("Act"), Pub. L. No. 104-649, __ Stat. __,
8 U.S.C. 1101(a)(15)(F), (M)
8 C.F.R. 214.2(f), (m)(1998)

(c) 1999 VIKRAM BADRINATH, P.C. All rights reserved.


Introduction (F-1)

The F-1 Visa allows a foreign national to enter the United States 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." As with other non-immigrant types of visas, the F-1 student must demonstrate that: (1) they have a foreign residence and have no intention of abandoning it (e.g,. as evidenced by family ties, property, past employment, other fixed ties, etc.); (2) they are a bona fide student qualified to pursue a full course of study; (3) they intend to pursue a full course of study; (4) they have sufficient and available financial support ("sufficient funds to cover expenses" means "the applicant is reuqired to establish the unlikelihood of becoming a public charge...and of resorting to unauthorized U.S. employment to maintain solvency."); (5) they are proficient in English or will receive training to make them proficient; (6) they intend to depart the United States. . In addition to these requirements, the student must also demonstrate that they will study only at an institution certified by the Attorney General. Such institutions are designated to engage in the issuance of I-20 Documents.

A foreign student may not attend a public elementary school or other publicly funded adult education program/public secondary school unless he attends the secondary school for a period not in excess of 12 months and demonstrates that he has reimbursed the school board for the full, unsubsideized per capital cost of the education. See INA 214(l)(1), 8 U.S.C. 1184(l)(1). A publicly funded adutl education programs is considered to be any education, training, ESL or other intentsive English program operated by, through or for a local public school district regardless of whether the program charges fees or tuition. This bar does not apply to post secondary schools such as public community or junior colleges which receive public funds, but charge full non-resident tuition to foreign students.

Dependents such as spouses and minor children who accompany the L-1 holder are eligible for L-2 status. L-2 status does not authorize employment in the United States.

In order to be eligible for L-1 status, a foreign national must have been employed by the company (in any form: parent, affiliate, subsidiary) abroad for at least one (1) year within the three (3) year period prior to the filing of the L-1 petition. In addition, the employee must be required for employment in the United States in a managerial, executive or specialized knowledge-capacity position.

Current immigration law permits an L-1 Intracompany Transferee visa holder to have "dual intent" with respect to his or her intent to immigrate to the United States. In this regard, the L-1 visa holder is not required to maintain a foreign residence.

Duration

The L-1A is initially issued for a period of up to three (3) years, with two (2) extensions (of durations of two (2) years) available thereafter. The maximum allowable stay for an L-1A visa holder is seven (7) years. The L-1B is initially issued for a period of up to three (3) years, with one (1) extension (of duration of two (2) years) available. The maximum allowable stay for the L-1B visa holder is five (5) years. These limits do not apply to foreign nationals who do not reside continually in the United States or whose employment in the United States is intermittent and consists of an aggregate of six months or less a year.

Application Procedure

Individual Petitions: The employer must usually file a petition with the U.S. INS on Form I-129. If the foreign national is a Canadian citizen, he or she may apply for the L-1 directly at any Class A Port of Entry by presenting a completed Form I-129 (in duplicate), signed by the employer, along with all relevant and applicable supporting documentation. The employer must file a petition for any dependents accompanying the L-1 holder on Form I-539 if they are applying for an extension of stay.

Blanket Petitions: Certain employers may qualify for approval of a "Blanket L-Petition." In these cases, an employer should file Form I-129S (in triplicate) for the employee directly with the U.S. INS. Alternatively, if the employee is not in the United States, the form should be filed with the United States Consulate in the employee’s home country, provided that the foreign entity has already been approved for Blanket L-1 processing. In addition, a requirement of Blanket L-1B approval mandates that the employee possess a Bachelor's Degree or its equivalent.


Introduction (M-1)

The F-1 Intracompany Transferee Visa allows foreign national employees of a multi-national company who are needed in the United States to work for the same employer (or its subsidiary, branch, or affiliate) as a manager, an executive or in a position which requires the employee’s specialized knowledge. Employees who will be employed in a managerial or executive position qualify for L-1A status, while an employee who will be employed in a position requiring specialized knowledge qualifies for L-1B status.

An "executive" may include either traditional executives (i.e., President, Vice President, Corporate Secretary or Treasurer) or a senior project manager who is not required to manage personnel. A "manager" must manage professional personnel (including, having the authority to make decisions such as hiring, promotion or termination) or manage a function which is an essential function of the company. "Specialized knowledge" refers to an advanced level of knowledge or expertise in the company’s products, research, processes, or procedures.

Dependents such as spouses and minor children who accompany the L-1 holder are eligible for L-2 status. L-2 status does not authorize employment in the United States.

In order to be eligible for L-1 status, a foreign national must have been employed by the company (in any form: parent, affiliate, subsidiary) abroad for at least one (1) year within the three (3) year period prior to the filing of the L-1 petition. In addition, the employee must be required for employment in the United States in a managerial, executive or specialized knowledge-capacity position.

Current immigration law permits an L-1 Intracompany Transferee visa holder to have "dual intent" with respect to his or her intent to immigrate to the United States. In this regard, the L-1 visa holder is not required to maintain a foreign residence.

Duration

The L-1A is initially issued for a period of up to three (3) years, with two (2) extensions (of durations of two (2) years) available thereafter. The maximum allowable stay for an L-1A visa holder is seven (7) years. The L-1B is initially issued for a period of up to three (3) years, with one (1) extension (of duration of two (2) years) available. The maximum allowable stay for the L-1B visa holder is five (5) years. These limits do not apply to foreign nationals who do not reside continually in the United States or whose employment in the United States is intermittent and consists of an aggregate of six months or less a year.

Application Procedure

Individual Petitions: The employer must usually file a petition with the U.S. INS on Form I-129. If the foreign national is a Canadian citizen, he or she may apply for the L-1 directly at any Class A Port of Entry by presenting a completed Form I-129 (in duplicate), signed by the employer, along with all relevant and applicable supporting documentation. The employer must file a petition for any dependents accompanying the L-1 holder on Form I-539 if they are applying for an extension of stay.

Blanket Petitions: Certain employers may qualify for approval of a "Blanket L-Petition." In these cases, an employer should file Form I-129S (in triplicate) for the employee directly with the U.S. INS. Alternatively, if the employee is not in the United States, the form should be filed with the United States Consulate in the employee’s home country, provided that the foreign entity has already been approved for Blanket L-1 processing. In addition, a requirement of Blanket L-1B approval mandates that the employee possess a Bachelor's Degree or its equivalent.

For more information about Student Visas, please contact us by email, telephone, or fax or schedule an appointment to have your individual case discussed and analyzed by an attorney.