FOR MORE ON STUDENT VISAS
ow many times have you had an international student in F-1, J-1, or M-1 status contact your office asking questions
about working in the United States or
obtaining lawful permanent resident (LPR) status? I
am sure that this is a very familiar scenario for many
immigration attorneys. Initially, the questions may
seem fairly simple, but upon further reflection, you
may find the questions contain multiple complex
layers that demand close examination.
In online forums, at conferences, and in my former
occupation as a Designated School Official (DSO), I
have encountered questions from students regarding
requests for evidences, changes of status, and adjustment denials because counsel failed to understand
the complexities of F-1, J-1, or M-1 student status.
These mistakes cost the student thousands of dollars
and, in some cases, can cause the attorney to face disciplinary action for falling short of his or her ethical
For example, a J-1 student or a person in J-1 status
wants to change his or her status to H-1B, is he or
she subject to the two-year home return rule under
INA §212(e)? Can you tell this from the documents?
Is there a chance that the documents are not correct
about the two-year requirement? Do you need an advisory opinion from the Department of State or can
the J-1 exchange visitor produce an approved waiver
from U.S. Citizenship and Immigration Services? Has
the J-1 re-subjected him- or herself to the two-year
rule after receiving the waiver? As you can see, you
need to answer all of these questions to determine eligibility for a change of status.
In another example, a company contacts you about
wanting to hire a recent graduate who is here as an
F-1 student. Is the student still in status? If he or she
J-1 Visas and Status
(Business Chapter 10)
The J-1 Program Demystified (Monograph)
is in post-completion Optional Practical Training status, did he or she not accrue more than 90 days of
unemployment? Does he or she have work authorization? Did the J-1 re-subject him- or herself to the
two-year rule after receiving a waiver? Do you have
enough facts to allow you to explain to the potential
employer the options for the employer to hire the student and for the student to work for the employer?
Can you confirm that the position being offered is in
a field that relates to the student's area of studies? Are
you able to outline the pros and cons for the employer, including potential liability issues?
The realm between F-1, J-1, and M-1 student status
and other nonimmigrant statuses as well as LPR status can be fraught with danger. Therefore, I encourage you to immerse yourself in the relevant regulations and guidelines and elicit critical facts from the
student and potential employer before giving advice.
When faced with such questions, knowing a competent, experienced DSO can be extremely valuable.
Questions from F-1, J-1, and M-1 students may seem
simple, but the advice almost never is.
Robert V. Torrey is a former DSO who runs his own
immigration and nationality law practice in Denton,
TX. The author's views do not necessarily represent
the views of AILA nor do they constitute legal advice
S EPTEMBER/ O CTOBER 2013
ILLUSTRATION BY BRADLEY AMBURN/SHUTTERSTOCK.COM
by Robert V. Torrey