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Immigration Guide for Students Entering the U.S. Workforce

By Baoqin Wang, (c) 2000

The Law Office of Baoqin Wang is pleased to provide this practical guide to immigration questions for foreign students attending school in the United States. If you need specific legal advice, you can contact us about our services by sending email to immigration@askwang.com.

This information is being provided for general educational purposes only and is not intended to be a substitute for actual legal advice. The Law Office of Baoqin Wang makes no warranties as to the accuracy of this information, and no attorney-client relationship is created by the use of this information by visitors to this website. This information is subject to change at any time.

Here are the immigration procedures you may have to go through if you want to work in the U.S. after completion of your study:

1. Optional Practical Training.

Optional practical training (OPT) is permissible when the student is in a bachelor's, master's, or doctoral program and has completed all course requirements for the degree (excluding a thesis or its equivalent). OPT gives an F-1 student the employment authorization to work in the U.S. in his or her field of study. Forms and application procedures to qualify for OPT are available at most American universities. Here are the key features of OPT:

  1. A student is eligible for OPT for a total period of twelve months.

  2. If a student leaves the U.S. for more than five months before returning and resumes studies in a new course of study in F-1 status, he or she is considered to be undertaking a new period of stay, and is eligible for an entirely new twelve-month period of OPT.

  3. Employment authorization document (EAD) may be issued only for a period ending no later than fourteen months after the completion of studies. If there is a delay in INS processing and the EAD is not issued until more than two months after completion of studies, a student may not be issued a full twelve-month period of OPT. Thus a student must be careful to make an early application to avoid forfeiting any time because of delays in INS processing. It may take the INS 90 days to issue an EAD.

  4. A student may apply for an EAD from the INS up to 120 days prior to commencement of employment, or 60 days following completion of studies.

  5. Authorization to engage in OPT is automatically terminated when the student transfers to another school.

  6. A student is allowed to split the twelve-month period of OPT between educational programs by requesting less than twelve-months of OPT for one program and using the balance for another program.

  7. No recapture of unused OPT time is permitted after a change of status. For example, if a student is granted one year OPT, begins the practical training, changes status to H-1B, and then wishes to return to F-1 status to pursue a new academic program, he or she will not be entitled to the unused period of practical training.
2. H-1B Specialty Occupation (Professionals) Visas

OPT only allows a student to work in the U.S. for a maximum of 12 months. If you wish to continue working in the U.S. after the expiration of your OPT period, you need to change your immigration status to get permission to continue working in the U.S. The most common way for a college graduate to work in the U.S. is to change to H-1B status. Here are the key features of the H-1B class visa:

  1. H-1B visas are temporary employment visas for those professional workers with at least a bachelor's degree (or its equivalent work experience).

  2. Applications for H-1B visas cannot be made by the foreign person. A petition can only be filed by the employer who will hire the foreign person. Currently, it is taking approximately 8-12 weeks for INS service centers to process a new H1-B petition.

  3. The initial stay for an H-1B visa holder is up to three years. The H-1B visa can be extended to another three years. The total stay of an H-1B holder is limited to six years. However, under the recently effected H-1B bill (the "American Competitiveness in the Twenty-first Century Act of 2000"), if an H-1B holder reaching the six-year limit is the beneficiary of a pending or approved I-140 (Immigrant Petition for Alien Worker), the H-1B holder may receive another extension of H-1B status until a decision is reached on his or her adjustment of status application.

  4. H1-B visas are subject to an annual quota system. Under the new H-1B bill, the cap for fiscal years (starting in October) 2001 through 2003 is increased to 195,000 H-1B visas per year. Once the number is reached, no more visas can be issued until the start of the next fiscal year. The quota will drop to 65,000 for fiscal year 2004 and thereafter if no new laws are enacted by then.
3. Applying for Permanent Residence (Green Card)

Many people apply for lawful permanent residence (green card) status during their stay under an H-1B visa, and the most common way for H-1B holders to apply for a green card is through employment based immigration petition. The three most common categories for college graduates to apply for green card are listed as follows:

  1. Foreign Nationals of Extraordinary Ability, Outstanding Professors and Researchers and Multinational Executives and Managers (EB-1).

    Individuals in this category can petition for permanent residency without having to go through the time consuming labor certification process. For those talented individuals who are simply one of the best in their field of art, science, education, business, or athletics, they can petition immigrant visa themselves as "extraordinary ability alien" without a job offer. For individuals who want to apply under "outstanding professors and researchers" or "multinational executive and managers," their employer must file the petition on their behalf.

  2. Workers with Advanced Degrees or Exceptional Ability in the Sciences, Arts or Business (EB-2)

    This is the most common way for college graduates to realize their green card dream. Petitions under this category normally must have a job offer and the potential employer must complete the labor certification process. The job offered must require an advanced degree (master or above) for the worker.

    The labor certification process involves another branch of the U.S. government, the Department of Labor (DOL), that must certify that the foreign worker will not displace nor adversely affect the wages and working conditions of U.S. workers similarly employed. Labor certification for the EB-2 visa is a complex, lengthy undertaking and usually takes several years to finish. The processing time of labor certification can be reduced if the employer has already made sufficient attempts to recruit U.S. workers and files a "fast track" request.

    Once the labor certification is approved, the employer may file an immigrant petition (I-140) for the foreign worker.

    An exception to the job offer and labor certification requirements under this category is the "national interest" waiver. This means that if an individual can show that his or her entry into the U.S. is in the national interest, then the job offer and labor certification requirements can be waived. A national interest waiver is strictly construed by the INS and usually is not an option for the average foreign worker.

  3. Skilled Workers and Professionals (EB-3)

    Petitions under this category normally must have a job offer and the potential employer must complete the labor certification process. The application process under EB-3 is basically the same as EB-2 application except the job offered usually requires a bachelor's degree be held by the worker.

    It is worth noticing that all the petitions for permanent residence are subject to annual quotas. The worldwide level for annual employment-based preference immigrants is at least 140,000 under the Immigration and Nationality Act (INA). The employment-based preference visas are issued to eligible immigrants in the order in which a petition has been filed. Time is always of essence here!


   
   
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