- The International Student Minefield
- October 24, 2013
- Law Firm: The Torrey Law Firm PLLC - Denton Office
- How 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 responsibilities.
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 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