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International Student Visas|Students' Attorney Program - ASUW

International Student Visas

From Student to Worker (transition from F-1 to H-1B)

Notice 

This article was researched and written by Chi-Yeon Kim, a University of Wyoming College of Law student, and supervised by the Students' Attorney Program. Thanks to San Dee Hutton at the International Students & Scholars Office and Carrie Hesco at the Office of International Programs for the insights and advice on this article. 

The information provided in this article is meant to be general in nature. Although every effort has been made to ensure its accuracy, the immigration law is continually changing, and therefore, this article should not be used as a substitute for legal advice.

 

If you are an international student with an F-1 visa, there may be three options after your studies at the University of Wyoming (UW).

First, you may go back to your home country after your studies. After graduation, technically you are not a student anymore. However, you can have a 60-day grace period to stay legally in the United States. That means that you can extend your stay for about two months after graduation. However, once you go out of the United States, you cannot get a re-entry to the United States with the visa you had held for your studies.

Second, you may continue your education in the United States as a student. You can maintain your F-1 visa status even if you attend a different university. All you need to do is paperwork with your new university. If you continue your education at UW for another degree, you need to consult with International Students & Scholars Office (ISS).

Third, you may want to change your status. If this is your case, the information below may help.

Most international students hold F-1 visas to come to the United States for their studies. Most students who seek to stay after graduating look for employment with U.S. employers. International students may seek positions at universities or job opportunities with private sectors in the students' field of study. Sometimes, students consider Optional Practical Training (OPT) as a transition.

 

Optional Practical Training/ Curricular Practical Training

The most common type of student visa, F-1 visa, allows international students to have a work authorization period called Optional Practical Training (OPT). You are eligible to apply for OPT when your course of study is complete. This period allows international students to legally work in the United States up to 12 months in the training of the students' field of study. One caveat is that the period of 12 months is cumulative. This means that if you worked during the academic year (for example, a summer internship), any time used for the work will be deducted from the time of OPT after graduation.

We have about 750 international students enrolled at the University of Wyoming (June 2011). As of June 2011, about 75 UW international students have applied for OPT. Maintaining legal status as a student is also requirement for OPT. According to ISS, there were only three denied cases so far during last two decades.

As an alternative to using the OPT time while enrolled in school, some schools (including UW) offer Curricular Practical Training (CPT) to students for summer internships. As mentioned above, OPT is still available to use; however, CPT is a better application while you are a student because CPT is a part of a degree program. The schools consider the work as a course of study and allow students to obtain academic credits for the work while authorizing them to work. The students must be enrolled in a UW internship course and must receive academic credit in order to participate in CPT. By means of the CPT, you can work during the academic year and can still secure a full year of OPT time after graduation. However, you may not use full time CPT for more than 12 months. If you use full time CPT more than 12 months, you are not qualified for any OPT time after graduation. However, for part time CPT, there is no time limitation. Therefore, use full time CPT wisely so that the cumulative period of time does not exceed 12 months. For example, you may still have a full year of OPT after graduation when you use full time CPT for 11 months.

The OPT is sponsored by UW (since it is an aspect of the F-1 visa) and an application for work authorization should be filed with United States Citizenship and Immigration Services (USCIS). ISS files on the behalf of students. It may take up to 90 days for USCIS to process and mail an Employment Authorization Document (EAD card). For UW students, the first step for OPT is to make an appointment with ISS. ISS will provide a packet for OPT. You need to fill out the packet and ISS must provide a recommendation for I-20 for OPT. ISS will then file with USCIS. USCIS will mail the documents to ISS, so you can pick up your paperwork from ISS.  Students who file their application should do the filing in a timely manner so that they receive all the paperwork necessary and EAD cards before working with their employers. If your paperwork for OPT is pending, you can legally stay in the United States, even if the 60-day grace period has passed. Consult with ISS if you have further question about the timing of the application.  

There is another caveat regarding OPT. The regulations say that students cannot be unemployed more than 90 days when under OPT status. You are responsible for providing employment information to ISS within 90 days so that ISS can report the employment information to USCIS. Again, students should plan wisely in deciding the timing of the beginning of the OPT and the employment.

For those who hold bachelor's, master's, and doctoral degrees in STEM (Science, Technology, Engineering, Mathematics) fields may be eligible for a one-time 17-month extension of OPT (total up to 29 months). The 17-month STEM extension is approved by USCIS.

To be eligible for the 17-month OPT extension, a student must have received a degree included in the STEM Designated Degree Program List. This list sets forth eligible courses of study according to Classification of Instructional Programs (CIP) codes developed by the U.S. Department of Education's National Center for Education Statistics (NCES)

The STEM Designated Degree Program List includes the following courses of study:

  • Actuarial Science
  • Biological and Biomedical Sciences
  • Computer Science Applications
  • Engineering
  • Engineering Technologies
  • Mathematics and Statistics
  • Medical Scientist
  • Military Technologies
  • Physical Sciences
  • Science Technologies

 

The STEM degree list is included in the preamble to the interim final rule and will be posted on the U.S. Immigration and Customs Enforcement (ICE) website. Note that to be eligible for an OPT extension the student must currently be in an approved OPT period based on a designated STEM degree and employed. Thus, for example, a student with an undergraduate degree in a designated STEM field, but currently in OPT based on a subsequent MBA degree, would not be eligible for an OPT extension.

 Four requirements are necessary to be eligible for the 17-month extension of OPT:

  • The student must have a bachelor's, master's, or doctorate degree included in the STEM Designated Degree Program List.
  • The student must currently be in an approved OPT period based on a designated STEM degree.
  • The student's employer must be enrolled in E-Verify.
  • The student must apply on time (i.e., before the current OPT expires).

 

Obtaining H-1B Visa

Following the year (or 29 months in the case of STEM extension) of OPT, students who want to remain in the United States should take another step to obtain work authorization and immigration status. For most international students, that step includes obtaining the H-1B, specialty occupation visa. The H-1B visa is sponsored by the employer and allows the visa holder to remain and work in the United States up to six years.

According to USCIS, U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers.

For academic positions, such as post-doc, research scientist, and faculty, there is no quota for H-1B. That means international students hired by U.S. institutions of higher education, non-profit research organizations, or governmental research organizations can petition for H-1B and start to work at any time. For example, as an employer, the University of Wyoming (UW) sponsors international students for H-1B to hire them as faculty members or researchers. If an applicant gets an offer from UW, help is available from the Office of International Programs to obtain H-1B.

However, for the private sector, the fiscal year 2012 for H-1B visa runs from October 1, 2011 to September 30, 2012. For fiscal year 2012, a quota of 65,000 visas (the "cap") will be issued. Some petitions are exempt from the cap under the advanced degree exemption (those who obtained a U.S. master's degree or higher). There is an additional quota of 20,000 visas for individuals who hold a graduate degree in any field from a U.S. university. Petitions may be filed up to six months prior to the start date of the visa. Therefore, petitions seeking a fiscal year 2012 H-1B cap number with an October 1, 2011 start date can be filed no sooner than April 1, 2011. For the past few years, the number of petitions filed on April 1 has exceeded the cap of H-1B visas for the upcoming fiscal year. USCIS conducts a lottery to determine which petitions will be reviewed. All other petitions are returned. However, last year, the applications hardly met its cap because the volume of applications has decreased. 

Since most international students cannot petition for H-1B as of April 1 of their graduating year, they should wait until April 1 of the following year to apply for an H-1B and begin their work under the OPT after graduation.

There is a practical concern for those students under the OPT. If students apply for OPT following spring graduation, the OPT expires in the spring or early summer of the next year. However, if they happen to apply for an H-1B in April of the year following their graduation for a visa start date of October 1, there is a gap when they do not have a visa or work authorization between the expiration of OPT and the start date of October 1 for H-1B. Fortunately, USCIS has employed a policy, called "cap gap," which allows former students in this condition to remain and work in the United States in the gap period. In order to qualify, an H-1B visa petition should be filed and selected in the lottery for a new fiscal year. If the petition is denied under "cap gap," the applicant would lose immigration status and would have to leave the United States immediately.

Any student on OPT who is the beneficiary of an accepted H-1B application will have their duration of status and any OPT work authorization automatically extended. This applies to all qualified students on OPT. The extension of the duration of status and OPT work authorization automatically terminates upon the rejection, denial, or revocation of the H-1B petition filed on the student's behalf. This benefit only extends OPT work authorization, not any other kind of F-1 work authorization.

Due to the difficulties with the H-1B visa program, many international students look for alternatives such as TN, H-1B1, and E-3 visas.

However, before you consider these alternatives, you should know that these visas are all non-immigrant visa. Therefore, you cannot intend to immigrate while you are on one of these alternatives (TN, H-1B1, and E-3). These visas are designated to allow internationals to work temporarily in the United States. Meanwhile, the H-1B visa is a dual intent visa. So, you can have immigration intent. You may apply for permanent residency while on a H-1B visa. At the University of Wyoming the Office of International Programs helps those who hold a H-1B sponsored by UW to apply for permanent residency. That is, obtaining the H-1B can lead toward permanent residency if you have immigration intent.

Note: UW usually sponsors H-1B visas for newly-hired internationals (e.g., research scientists and faculty) holding F-1 student visas. Sometimes, however, internationals holding a J-1 visa can be employed by UW. J-1 visas are usually used for visiting scholars (professors or researchers) to allow them to teach or research temporarily in the United States. Changing status from J-1 to H-1B is more complicated because there may be a two-year residence requirement in the student's home country. Please check out J-1 Two-Year Home Country Physical Presence Requirement at ISS. If you hold a J-1 visa and wish to change your status into H-1B with employment, consult with the Office of International Programs.

 

For Citizens of Canada and Mexico (TN NAFTA Professionals)

The North American Free Trade Agreement (NAFTA) created special economic and trade relationships among the United States, Canada and Mexico.

The TN non-immigrant visa allows qualified Canadian and Mexican citizens to seek temporary entry into the United States to work in specific fields at a professional sphere.

Among the types of professionals who are eligible to seek admission with a TN visa are accountants, engineers, lawyers, pharmacists, scientists, and teachers.

For those who are Canadian or Mexican citizens, you may be eligible for TN non-immigrant visa, if:

  • Your profession qualifies under the regulations.
  • The position in the United States requires a NAFTA professional.
  • You have a pre-arranged full time or part time job with a U.S. employer (but not self-employment).
  • You have the qualifications of the profession.

 

Therefore, if you are a Canadian or Mexican citizen and your program of study meets the regulations under NAFTA Professionals, you can qualify for the Trade NAFTA (TN) visa to work legally in the United States. The TN visa can be filed at any time and there is no cap.

For Canadian citizens, there is no need to apply for a visa with a U.S. consulate or file a petition with USCIS. You can request admission as a TN non-immigrant at a U.S. port of entry.

For Mexican citizens, there is no need to file a petition with USCIS, but, you need to obtain a visa to enter the United States as a TN non-immigrant. You are required to apply for a TN visa at a U.S. embassy or consulate in Mexico. Once the TN visa is issued, you may request admission at a U.S. port of entry.

The initial period of stay is up to three years. If you wish to stay beyond the initial period, you should seek an extension. Although there is no limit on the number of renewals, immigration officers frequently note that multiple renewals imply an intent to immigrate, and deny renewals.

 

For Citizens of Chile and Singapore (H-1B1)

The Free Trade Agreement with Chile and Singapore (both took effect on January 1, 2004) created a new class of non-immigrant work visa for citizens of Chile and Singapore, which is the H-1B1 Professional Visa.

To be eligible for the H-1B1 visa, an applicant must meet the following criteria:

  • The position must be a specialty occupation; that is, a position requiring theoretical and practical application of a body of specialized knowledge. Some examples of specialty occupations are jobs in the fields of engineering, mathematics, physical sciences, computer sciences, medicine and health care, education, biotechnology, and business specialties, such as management and human resources. However, applicants have successfully applied for H-1B1 visas for work in other fields, including teachers and fruit inspectors.
  • The applicant must have a post-secondary degree at least four years of study in his or her field of specialization. In some cases, a combination of specialized training and experience can constitute alternative credentials.
  • The applicant cannot be self-employed or an independent contractor.

 

The H-1B1 visa is a special category of H-1B. The H-1B1 visa also has a cap which has never been met. Therefore, currently applicants can file with USCIS at any time.

H-1B1 visas are multiple entry and valid for a maximum of 18 months. Extensions and renewals are allowed. The period of employment in the United States, however, must be temporary. Therefore, the applicant must demonstrate non-immigration intent. Immigration officials may question multiple renewals.

This requirement makes the FTA Professional Visa (H-1B1) different from the traditional H-1B visa, as applicants for traditional H-1B visas do not have to demonstrate that they intend to return to Chile or Singapore when their temporary job is finished. Chileans and Singaporean's are still eligible to apply for traditional H-1B visas.

 

For Citizens of Australia (E-3)

The E-3 visa is applicable only to citizens of Australia. Citizens of Australia must be qualified to work in a specialty occupation. The specialty occupation requires theoretical and practical application of a body of specialized knowledge in professional fields and at least a bachelor's degree, or its equivalent, as a minimum requirement for the position in the United States.

For those who are Australian citizens, you may be eligible for E-3 visa, if:

  • You have a legitimate offer of employment in the United States.
  • You possess the necessary academic or other qualifying credentials.
  • You are qualified to fill a position in a specialty occupation.

 

Applicants for the E-3 visa can currently file with USCIS. There is a cap on E-3 at this time, but, this cap has yet to be met. However, early application is advised due to increasing number of applications.

The initial period of stay for an E-3 visa is two years and you can get an extension up to two years per each extension. There is typically no maximum number of extensions with few exceptions. It is also treated as a non-immigrant visa.

 

If you have further questions, you may contact the International Students & Scholars Office or the Office of International Programs.

 

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