How can foreign students settle in the US after graduation?

The usual path foreign students take to settle in the US after graduation is obtaining an Optional Practical Training (“OPT”) work authorization and thereafter changing nonimmigrant status from F-1 student to H-1B specialty occupation.  Once in H-1B status lawful permanent resident status is generally pursued through family or employment based sponsorship.

OPT WORK AUTHORIZATION

F-1 students who have been enrolled in legal student status for a minimum of 9 months are eligible for OPT work authorization to be used as either pre-graduation OPT or post-graduation OPT by the U.S. Citizenship & Immigration Services (USCIS).  OPT work authorization provides foreign students the opportunity to apply theoretical knowledge obtained in an academic program to a practical work experience. Employment in OPT must be directly related to the major field of study in order to qualify.  OPT may be full time or part time and may take place anywhere in the country.
There are three types of OPT:

  1. Pre-completion
  2. Post-completion (after all degree requirements are completed)
  3. OPT “STEM” extension available to Science, Technology, Engineering or Math students hired by an employer registered with the government’s “E-Verify” Program.

Standard OPT is available for a cumulative maximum of 12 months per educational level.  OPT may be used in “chunks” during vacation terms before completion of studies, or used for a 12-month, full-time period after completion of studies.  A one-time extension of 17 months (for a total of 29 months) is available to certain STEM degree recipients.

A job offer is not required prior to applying for OPT.  Students apply for OPT work authorization by submitting Form I-765 to USCIS with supporting documentation.  The earliest graduating students may file for OPT work authorization with USCIS is 90 days prior to the completion of studies and the latest is 60 days following program completion which is the ending date on the I-20.  Students applying for pre-completion OPT can apply no earlier than 90 days before their requested employment start date.  It generally takes USCIS between 2-3 months to issue an OPT work authorization card.

Any work under OPT must be endorsed by the school’s Office of International Students and Scholars and must be authorized by USCIS before the student can start working.

Pre-completion OPT is limited to 20 hours per week while school is in session and the student still has coursework to complete.  Full-time employment can be requested for pre-completion OPT done during official school breaks.  For post-completion OPT, a student must be employed for at least 20 hours per week.  Students requesting post-completion OPT may work 40 + hours per week.  During post-completion OPT, F-1 status is dependent upon employment.  Students may not accrue an aggregate of more than 90 days of unemployment during any authorized period of standard post-completion OPT.  Students are free to change OPT employers but must report any change of employer or any unemployment to the school’s Office of International Students and Scholars.  Self-employment and volunteer work are permissible in OPT.

F-1 to H-1B

The goal of most international students after they graduate is to remain in the US to gain work experience relevant to their degree studies.  The H-1B visa program is designed for and made available to F-1 students to achieve this goal.  It is necessary to have a Petition filed by the prospective H-1B employer to transfer the student’s status from F-1 to H-1B.  There are 20,000 visa numbers set aside for individuals with U.S. Master’s Degrees and then 65,000 other visas.  H-1B visas become available on October 1st of each year and H-1B visa petitions may be filed up to 6 months early and are usually filed by students on April 1st.  H-1B visa petitions filed on April 1st request an October 1st start date.  There is no way to know each year when the quota of H-1B visas will be exhausted so it is prudent to file as close to April 1st as possible.

The OPT of most students expires during the summer but so long as a student receives a cap number and files before the expiration of the OPT, the OPT work authorization will be extended pending a decision and if the petition is approved it will be extended through September 30th.  Certain H-1B employers such as universities are cap-exempt and can file petitions any time throughout the year.

The H-1B visa allows workers in specialty occupations – areas that normally require a bachelor’s degree or higher – to work in the U.S. for up to a total of six years (and beyond if an application for a green card has been in process for at least one year).  It is not necessary for an employer to demonstrate that there is a shortage of qualified American workers to sponsor an individual for an H-1B visa.  It is only necessary for the employer to verify that the H-1B worker is being paid the prevailing wage for the work being performed and that employment of the H-1B worker is not harming conditions for American workers.

After an offer of employment is made, the first step for an employer is to ensure that the H-1B employee will be paid at least the prevailing wage paid to similarly employed workers in the geographic area where the H-1B employee will be employed. The employer also guarantees that it will not pay the H-1B employee less than the actual wage paid to its other employees with similar qualifications.

Once the wage information has been obtained, notice is provided to American workers that the employer will be hiring an H-1B employee.  Thereafter, a Form ETA 9035 Labor Condition Application (LCA) is submitted to the U.S. Department of Labor.  On this form, the employer submits the wage to be paid, the prevailing wage, and makes certain attestations.

When the LCA form is returned to an employer, it is submitted to the USCIS as part of the H-1B petition package.  Also included in the USCIS petition package are documentation of the H-1B employee’s qualifications, the employer’s type of business, and the type of work the H-1B employee will be performing.

To qualify for the position, the H-1B employee must have at least a U.S. Bachelor’s degree in a field relevant to the position sought or a Foreign degree that has been evaluated to be the equivalent of a U.S. Bachelor’s degree.  The H-1B employee can also demonstrate through work experience or a combination of education and experience that they have the equivalent of a Bachelor’s degree.

An H-1B visa is a “dual intent” visa meaning that a visa will not be denied simply because a person has declared an intent to become a permanent resident.  Once approved, an LCA is valid for three years and H-1B Petitions are usually approved in three year increments.

Once the H-1B visa is approved, the person can only work for the position stated on the H-1B petition. If the person wishes to change employers, the new employer must file a new petition and so long as certain requirements are met the individual begin working for a new employer as soon as the new employer has filed their petition with USCIS.

H-1B status is employment based so the status will immediately end if the employment is terminated.  If the foreign national changes employers, the new employer must file the new petition before the date of termination of employment absent a showing of good cause.

Once in H-1B status, a foreign student can look to opportunities for permanent residence.

What are the most popular and/or easiest options for legal immigration?
           

The 3 most common options for legal immigration to obtain permanent residence are family sponsorship, employment sponsorship, and the visa lottery.

FAMILY BASED IMMIGRATION 

Immigration through a family member who is a US citizen or permanent resident is the most common way of gaining US residency.  All that is required is the qualifying family relationship.  The ease with which a person can immigrate through a family member is in keeping with American notions of the importance of the family.

The first question to address in a family-based immigration case is whether a qualifying family relationship exists. Qualifying relationships are grouped into two main categories – immediate relatives and other close family members.  Immediate relatives of US citizens are given special preferential treatment. First and foremost, they are allowed to immigrate in unlimited numbers.  The following are immediate relatives:

·        Spouses

·        Children, unmarried and under 21

·        Parents

Other close family members of citizens and permanent residents are also allowed to immigrate, subject to annual numerical limitations.  The following are other relatives who are allowed to immigrate, and the annual limits on each category:

·        Unmarried adult children of citizens – 23,400

·        Spouses and unmarried children of permanent residents – 114,200

·        Married adult children of citizens – 23,400

·        Siblings of citizens – 65,000

Preparing the USCIS application

The elements of the application that must be submitted to the USCIS are the same for each type of family member.  The main USCIS form that is used in all family cases is the I-130 Petition for Alien Relative.  The petitioning relative must complete this form.  The application must include documentation of the qualifying family relationship, and of the petitioner’s status as a citizen or permanent resident.  When the application is made for a spouse, it must include copies of Form G-325A – Biographic Information for each spouse, as well as a color photo of each spouse.  When the application is filed for an immediate relative not subject to annual numerical limitation and the relative is in the US, an application for adjustment of status may be filed at the same time.

The petition is filed at a USCIS lockbox in the US.  If the petition is in order and shows the qualifying relationship, and if the alien is an immediate relative, they can either adjust status or immediately apply for an immigrant visa at a US consulate.  If the alien is not an immediate relative, they must wait until a visa number become available to either adjust status or apply for an immigrant visa.  In such cases, the priority date is the date on which the USCIS received the complete application.

EMPLOYMENT BASED IMMIGRATION 

Each year 140,000 employment-based immigrant visas are available.  Ten thousand of these are available to immigrant investors, the EB-5 visa category.  Ten thousand are available to “special immigrants,” such as religious workers, certain employees of the US government abroad, and widows and widowers of US citizens, the EB-4 visa category.  The remaining 120,000 visas are divided between the first three preferences.  Forty thousand visas are available in the first preference, EB-1, which covers international managers and executives, outstanding professors and researchers, and people of extraordinary ability.  Forty thousand visas, plus any that are not used in the EB-1 category, are available in the second preference, EB-2, which is available to aliens of exceptional ability and advanced degree professionals.  Forty thousand visas, plus any that remain from the other two categories are available to the third category, EB-3, which is available to people with a bachelor’s degree, skilled workers, and unskilled workers.

There are several requirements common to each of the first three employment based preference categories.

  • The alien must be offered a full-time, permanent position in the US (note:  there are some exceptions to this requirement in the first two preference categories).
  • The Department of Labor must certify that there are no available US workers (note:  there are some exceptions to this requirement in the first two preference categories).
  • The alien must meet the minimum requirements for the position offered and the employer must be able to pay the salary offered.

The EB3 category is available to those who hold a US bachelor’s degree or its foreign equivalent or to those where the position offered requires at least two years training and experience.  The alien must possess the requisite background, but simply because the alien has two years of training and experience does not make it a skilled position if it does not otherwise require two years of training and experience.

Under USCIS regulations, whether a position involves skilled labor is determined by reference to the Department of Labor approved labor certification.  The primary issues that occur here result from conflict between the employer’s belief that the position does require two years and Department of Labor guidelines on specific vocational preparation that show the position requires less.  Therefore this issue must be resolved before the application is submitted to the USCIS.

There is also a category that covers “unskilled labor,” defined by the Department of Labor as work that takes less than two years training or experience to perform.

Applying for the EB-3 Visa

After the Department of Labor has approved the labor certification, or in cases in which the Department does not need to approve a labor certification, an application for an immigrant worker may be filed.  The form used for this petition is the I-140 Immigrant Petition for an Alien Worker.  It is submitted to the appropriate regional USCIS Service Center along with the approved labor certification and a letter from the employer.  An I-485 Adjustment of Status Application may now be filed simultaneously with an I-140 Petition.

Other items that must be included with the petition are documents showing that the employer has the financial resources to pay the offered wage, which must be shown to be at least the prevailing wage.  There must also be documentation that proves the position is within the preference category sought.  In the EB-3 category this evidence would depend on which subclassification is sought.  Such documentation can come from Department of Labor resources, or from industry standards.  Finally, evidence must be submitted that the alien meets the job requirements, such as a copy of a bachelor’s degree or evidence of work experience.

THE LOTTERY

The entry period for the green card lottery is each fall.

The Immigration Act of 1990 created the Diversity Visa lottery program.  Under it, 55,000 visas are made available each year to nationals of countries that do not have large numbers of immigrants in the US.  (Under the Nicaraguan Adjustment and Central American Relief Act, 5,000 of these visas must be used for NACARA applicants.)  The requirements for qualification as a diversity immigrant are quite simple:  one must be a native of a qualifying country, and must have a high school education, or within five years before the application, have two years experience in a job that requires two years of training or experience.

Natives and Qualifying Countries

Countries are selected for the lottery using a very complex formula, but it essentially boils down to past rates of immigration.  If the country has had less than 50,000 immigrants to the US over the prior five years, it qualifies.  There are more formulas that are used to allocate the visas among the qualifying countries.  These depend in part on whether the country is in a high admission region or a low admission region.  In no case can a single country receive more than 3,850 visas.  There are six regions, Africa, Asia, Europe, North America, Oceania, and South and Central America and the Caribbean.  This year, the countries that are ineligible are:  Canada, China (not including Hong Kong or Taiwan), Colombia, the Dominican Republic, EL Salvador, Haiti, India, Jamaica, Mexico, Pakistan, the Philippines, South Korea, the United Kingdom (except for Northern Ireland), and Vietnam.

Making the Application

Each year the State Department accepts applications for the DV-lottery, generally in the fall.  The application period is for 30 days, and applications received before or after the official entry period will not be accepted.  The application is very simple.  The State Department does not require a set form, only that certain information be included.  The applicant must provide their name, date and place of birth, the names, dates and places of birth of any spouse or children, and if they are claiming a country other than the country of birth, indicate that as well.  Finally, the application should include a mailing address where the State Department can reach the applicant if they are selected for further processing.  The application must be accompanied by a passport size color photograph of the applicant.  The applicant must sign their own form, and the signature must be original.

Processing after Selection

If a person is selected for further processing, they will be notified by the State Department.  At the same time, they will receive Packet III, which contains State Department forms for consular processing of an immigrant visa.  If the applicant is in the US, they may apply for adjustment of status.  Generally the State Department will expedite DV visa applications, because the visas are only available for one fiscal year, and the entire process must be completed within that period.

 

 

 

 

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