After studying in the United States and experiencing the opportunities that our country provides, foreign students often search for ways to remain in the United States permanently. The process, however, is difficult, confusing, and time consuming for individuals to attempt to handle without assistance. The following is a brief overview of the student-to-resident process through employment in the United States.
Foreign students first enter the country after obtaining an F-1 student visa. A prospective student must prove that, at the time he requested the F-1 visa, he had the intent to return home after completion. This nonimmigrant intent is proven by documentation that shows intent to depart the United States upon completion of the course of study (e.g., ties to family and home country), and the funds to cover all educational, living and travel costs while in the United States. The F-1 visa is valid for the duration of the course of study. Once study has been completed, students often request post-completion optional practical training, or “OPT,” which authorizes employment in the field of study for up to one year after completing the program.
Prior to the expiration of OPT, individuals often seek an H-1B visa through a sponsoring employer. H-1B visas are temporary work visas issued for specialty occupations that require specialized knowledge and a U.S.bachelor’s degree or its equivalent. H-1Bs can be issued in three-year increments. An individual may only be present in H-1B status for a total of six years, after which she must spend one year outside the United States before another H-1B visa can be approved (with limited exceptions). The number of H-1Bs issued per year are generally limited to 65,000 visas, with an additional 20,000 available for graduates of U.S. graduate (master’s degree or higher) programs. Certain types of organizations, however, are exempt from the yearly caps.
H-1B visa holders are permitted to have dual intent, which means that they may safely apply for permanent residency while in H-1B status. Often, individuals in H-1B status pursue permanent residency through one of the employment-based visa categories. EB-1 visas are highest priority and include individuals of Extraordinary Ability, Outstanding Professors and Researchers, and Multinational Managers. EB-2 visas are reserved for individuals with Advanced Degrees or Exceptional Ability. EB-3 visas cover Unskilled Workers, Skilled Workers, and of most importance to this discussion, Professionals (the individual must possess and the job must normally require the equivalent of a U.S.baccalaureate degree). With the exception of the Extraordinary Ability category and National Interest Waivers under the EB-2 category, all other visas require a sponsoring employer. Each category is subject to per-country limitations, with higher categories having shorter wait times than lower categories. In addition, most categories require a labor certification process, which must prove that there are no U.S.workers who are available and qualified for the position.
There are numerous concerns and pitfalls of which students must be aware. Examples include maintaining all F-1 requirements, whether any time was spent in J-1 status (if subject to the two-year home residency requirement), gaps in time between F-1 / OPT and H-1B status, labor certification, and having the credentials and evidence to qualify for an immigrant visa. Because of these inherent difficulties, students are advised to consult with an experienced and knowledgeable immigration attorney and explore all possible options.
If you have any questions about the employment-based pathway from student to permanent residency, or any other general immigration questions, we at Donati Law would be honored to assist you.
