Foreign Students: How to Obtain Work Visas and Green-Cards In the U.S.


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A guidance on how foreign national students already in the U.S. can obtain work permits, extension of work visas, and finally adjust their status to lawful permanent residents

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Foreign Students: How to Obtain Work Visas and Green-Cards In the U.S.

  1. 1. Immigration for foreign national students Susan Bond Law Office of Susan Bond
  2. 2. This presentation will cover the following topics: • Work authorization for foreign national (FN) students while enrolled in school and upon graduation • F-1 • J-1 • Changing your status from F-1 to a different non-immigrant status that authorizes employment • Applying for Lawful Permanent Residence (LPR)
  3. 3. WORK AUTHORIZATION WHILE IN F-1 STATUS Two kinds of training that allow FN students to work while in F-1 status: •CURRICULAR PRACTICAL TRAINING (CPT) •OPTIONAL PRACTICAL TRAINING (OPT) – This includes a 17-month STEM extension
  4. 4. Overview of CURRICULAR PRACTICAL TRAINING MUST RELATE TO DEGREE The CPT must relate to the FN’s major and the experience must be part of the program of study. OPT ELIGIBILTY If FN has 12 months or more of full-time CPT, FN is ineligible for OPT, but part-time CPT is fine and will not prohibit FN from doing OPT. SIGNED LETTER / AGREEMENT CPT requires a signed cooperative agreement or a letter from FN’s employer. GRADUATE SCHOOL When FN enrolls at the graduate level, the designated school official (DSO) may authorize CPT during the first semester if the program requires this type of experience. FULL TIME OR PART-TIME FN can work on CPT either full-time or parttime. USE I-20 TO WORK The DSO will provide the FN with a new Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status,” that shows that the DSO has approved the FN for the particular employment.
  5. 5. Overview of OPTIONAL PRACTICAL TRAINING MUST RELATE TO DEGREE OPT must relate to the FN’s major or course of study. HOW TO OBTAIN WORK PERMIT The FN must apply for work authorization by filing a Form I-765, “Application for Employment Authorization,” with U.S. Citizenship and Immigration Services (USCIS) and paying a filing fee. 12 MONTHS FOR EACH LEVEL The FN can apply for 12 months of OPT at each education level i.e. 12 months for Bachelor’s and 12 months for graduate level PROCESSING TIMES USCIS will send the FN a Form I766, “Employment Authorization Document” (EAD) upon approving the Form I-765. Processing times for the EAD can be up to 90 days. The FN must wait until receiving the EAD to start work. NEW FORM I-20 The DSO will provide the FN with a new Form I-20 that shows the DSO recommendation for this employment. LIMIT ON WORK HOURS While school is in session, the FN may only work 20 hours per week.
  6. 6. 17 month opt stem extension Some students qualify for an additional 17 months of OPT under the following circumstances: •The degree for the student’s current period of post-completion OPT is a Bachelor’s, Master’s or Doctoral degree in a science, technology, engineering or mathematics (STEM) program. •The employer from which FN is seeking employment uses the E-Verify program. •FN has not previously received a 17-month extension of OPT. •The DSO must provide the FN with a new Form I-20 that shows the DSO recommendation for this employment. •The FN must apply for work authorization by electronically filing a Form I-765 with USCIS and paying a filing fee. USCIS will send you an EAD upon approving your petition. •The FN may continue to work on his/her expired EAD for OPT up to 180 days while the 17-month extension petition is pending if these conditions are met: – The FN is currently in a period of post-completion OPT. – The application for the 17-month extension was filed prior to the expiration of the current OPT.
  7. 7. WORK AUTHORIZATION AFTER completion of degree program WORK AUTHORIZATION IN J-1 STATUS H-1B SPECIALITY OCCUPATIONS TN NAFTA PROFESSIONALS OBTAINING PERMANENT RESIDENCE O VISA FOR INDIVIDUALS WITH EXTRAORDINARY ABILITY The above-mentioned types of work authorization are available to FN students who are in F-1 status, both during the time they are enrolled in classes and after graduation. After the FN completes her or his studies, she can still obtain work authorization through various ways.
  8. 8. WORK AUTHORIZATION WHILE IN J-1 STATUS • Employment is authorized pursuant to J-1 status, and there is no application required to prove work authorization. The J-1 is usually issued in one year increments. • Some exchange visitors are subject to a 2 year home residence requirement, while others aren’t. If the FN is not subject to the 2 year home residence requirement, s/he may apply to change to another non-immigrant status, assuming they are otherwise eligible for that status. If the FN is subject to the 2 year home residence requirement, s/he must obtain a waiver of the requirement. • An exception is made for those changing from J-1 status to O status for extraordinary ability—although few students/exchange visitors will meet the stringent requirements for this classification, there is no requirement that you get a waiver before changing to O status.
  9. 9. Changing from F-1 to a non-immigrant status that allows employment H-1B Speciality occupations TN NAFTA Limited to foreign nationals from Canada and Mexico O VISA For foreign nationals with extraordinary ability Keep in mind that a student on F-1 is given a 60 day grace period to depart, apply for a change of status or reenroll in school. There are exceptions/special rules regarding this 60 day period for a FN who has applied to change to H-1B status, as outlined below under “Cap Gap Rules.” On the left are some of the most common non-immigrant visa categories that grant work authorization.
  10. 10. H-1B Speciality occupations • This category allows a FN to obtain work authorization for up to 6 years for a US Company, University or Research Organization. • The basic requirements are that the position to be filled is a professional level position, requiring at least a bachelor’s degree or the equivalent; and that the FN possesses at least a bachelor’s degree in the field that the job offer is in. • The H-1B category covers professional occupations, such as civil and mechanical engineers, computer science professionals, scientists, professors, research associates, etc.
  11. 11. H-1B Speciality occupations • The FN must have an offer of employment (it can be part-time or full-time) but the FN may not be self-employed on H-1B. • There are limits on the numbers of H-1B visas issued each fiscal year, with only 65,000 new visas issued each year + an additional 20,000 for FN who hold a Master’s degree. The new fiscal cap starts October 1 of each year, and applications may be submitted on or after April 1 for an employment start date of October 1. • Institutions of higher education and not-for-profit organizations affiliated with institutions of higher education are exempt from the H-1B cap.
  12. 12. • • The Cap Gap Rules: An employer can file an H-1B on behalf of a FN no sooner than April 1 for a start date of employment on October 1. What if the FN’s OPT expires prior to October 1st? The Cap Gap Rule allows the FN to have continued work authorization if the student is currently in valid F-1 status, and a period of OPT, and an application to file for H-1B has been filed while the FN is in status. Work authorization is automatically extended during this time, and until either September 30th, or the H-1B petition has been adjudicated. • If the H-1B is denied, work authorization ends and the 60 day grace period normally allowed for F-1 students begins. • If the FN is applying for a job with an employer that is not subject to the H-1B cap (university for example), the Cap Gap Rule is not needed, as the H-1B employment may begin at any time during the year, and not subject to the October 1st start date. • If the student is not in valid F-1 status, the Cap Gap Rule is not available.
  13. 13. TN NAFTA PROFESSIONALS • TN NAFTA Professionals: This is a non-immigrant status that is available to citizens of Mexico and Canada, pursuant to a treaty agreement between the U.S., Canada and Mexico. • TN status is a good option for those who may be seeking employment with the private sector, and the company is not receptive to the H-1B process, which may be seen as cumbersome. • There are limited professions that are eligible for TN status, which are listed on the NAFTA job list. Chemists are on the list of professions covered by NAFTA. • TN visas may be issued in 1-3 year increments, and there is no limit on the number of years you may hold TN status, as there is for H-1B.
  14. 14. O Visas for extraordinary ability • The O Visa category for Individuals of Extraordinary Ability: A non-immigrant status that allows an individual to live and work in the United States. This category is an option for those who do not have an employer willing to sponsor the H-1B visa, and they do not qualify for the TN visa. • The process for an employer is less burdensome, however the criteria for eligibility is very high, and includes in part: • The FN must prove that s/he has risen to the top of their field of endeavor, and has national or international acclaim. • Proof of the above would be publications in scientific journals, significant contributions to the field of science; awards and recognition from the scientific community. • This category is not usually beneficial to a student upon graduation, unless that student is exceptional.
  15. 15. SEEKING PERMANENT RESIDENCE THROUGH EMPLOYMENT BASED VISAS Now that you have obtained non-immigrant status and work authorization, how do you become a permanent resident? What different avenues are available and what factors are relevant? Key issues to remember: • Obtaining permanent residence/a green card in the United States, requires an offer of full-time employment by a US company or university, with few exceptions as outlined below. • The processing times for permanent residence will be based on factors such as the position to be filled and the requirements for the position. For example, if it is a higher level position requiring a Master’s or Ph.D, the processing times are faster, because fewer people are qualified for these positions and fewer people are applying/in line. The country of birth of the applicant also impacts processing times. • Even while your permanent residence is in process, you must maintain your non-immigrant status and work authorization. Having permanent residence on file does not automatically grant work authorization. •
  16. 16. Eb-3 - Skilled Worker and Professional positions • Job requires two year or Bachelor’s degree • The employer must first file a Labor Certification to prove that there are no eligible US workers available for the position. • Assuming there are no US workers available, the employer files an I-140 Visa Petition on behalf of the employee. • Once the I-140 is approved, and/or the priority date is current, the application to become a Permanent Residence is filed.
  17. 17. EB-2 – ADVANCED DEGREE AND EXCEPTIONAL ABILITY Members of the Professions with an Advanced Degree: •The employer must first file a Labor Certification to prove that there are no eligible US workers available for the position. •Assuming there are no US workers available, the employer files an I140 Visa Petition on behalf of the employee. •Once the I-140 is approved, and/or the priority date is current, the application to become a Permanent Residence is filed. National Interest Waiver. An individual may qualify for the EB-2 category of “Exceptional Ability” and may avoid the Labor Certification process, if the position is one that is in the National Interest by filing a National Interest Waiver. •National Interest means that the job will benefit the US healthcare, environment, education system, etc. These positions are usually funded by government grants and must substantially benefit the US on a national level, and the FN must play a critical role in the work that’s being done.
  18. 18. EB-1 – EXTRAORDINARY ABILITY • Aliens of Extraordinary Ability: • No requirement for offer of employment and no labor certification requirement to show there are no available US workers. The standard is very high—think rocket scientists, cutting edge research to save lives and cure diseases or inventions that make our country safer. • The person who qualifies for this category has already risen to the top of his/her field of endeavor or has accomplishments that are not normally found among his peers, such as winning national or international awards. • Outstanding Researcher or Professor: • This category does require an offer of full-time employment but does not require a labor certification to prove there are no US workers. The standard of evidence is similar to that listed above but not as stringent in that the person does not need to prove he/she has risen to the top of the field. • The USCIS does closely scrutinize whether there is an offer of fulltime employment. If the position is a not a tenured track position at a university, this may be problematic, so post-doc researchers may have problems applying through this category. Researchers may pursue employment at scientific research organizations however, and qualify for this category.
  19. 19. STUDY AND WORK SMART The material in this powerpoint is copyrighted by The Law Offices of Susan Bond. The material is for informational purposes only and does not constitute legal advice. The material is not guaranteed to be correct, complete, or up to date. Information provided by or cited to third parties does not necessarily reflect the opinions of Susan Bond or any of its attorneys or clients.