In a previous Miller Mayer Memo, we discussed visa options for international students wishing to study in the United States who have been whipsawed recently by a combination of anti-immigrant actions from the White House and COVID-19 restrictions. Despite these issues, the same visa categories as before still exist for international students after graduation.  

It’s important to consider your goals after graduation and to plan ahead. For example, are you looking for an opportunity to live and work in the United States temporarily before returning to your home country? Or would you like to establish long-term residence, with an eye toward eventual U.S. citizenship? Other questions to keep in mind may include: 

  • Can I work? Not every status lets you work. Doing something for free or as a volunteer could still be work. 
  • Who can I work for and what am I allowed to do? Many visas are employer-specific; some are job- or even location-specific. Some visas or green card options won’t allow you to work for a company that you own and control. 
  • How can I be compensated? Some visas require minimum pay. Some visas or green card options won’t be available if you’re compensated via stock or an ownership draw. 
  • Does my status limit my family members? Not every visa allows your spouse to work. Some family members can join you in the United States; others cannot. 

A variety of temporary work visas are available to qualifying graduates, for example: E treaty traders/investors and Australian professionals; H temporary workers; J exchange visitors; L intracompany transferees; O persons of extraordinary ability; and TN NAFTA professionals (Mexico and Canada). Others include G international organizations; I journalists/media; Q international cultural exchange visitors; and R religious workers, among others.  

Below we discuss the most common option—the H-1B professional—followed by a summary of paths to permanent residence, and some tips and caveats. 

H-1B Professionals 

An H-1B professional must be employer-sponsored for up to 6 years in a “specialty occupation.” A specialty occupation currently is defined as a job for which a bachelor’s degree or higher in a specific field is required (U.S. Citizenship and Immigration Services is imposing a more exacting standard); the beneficiary must have at least the relevant bachelor’s degree or equivalent; the employer must pay the required wage; and the beneficiary must have a license if required for the occupation. 

Advantages include:  

  • Duration: There is a six-year maximum, a one-year stay outside the United States refreshes the six years, and additional extensions are possible if the green card application process is started by the end of the fifth year;  
  • Time to work toward a green card; 
  • No advertising or test of the U.S. labor market; 
  • No delay when you change employers; and 
  • Some spouse work authorization under the regulations (although this may be withdrawn in the future). 

Disadvantages include: 

  • A separate petition required for each employer; 
  • Limits on self-employment (be careful of stock compensation); 
  • A lack of flexibility, unlike the F-1 OPT (Optional Practical Training); 
  • “Red tape” and costs, which can run up to $5,000 per filing, including legal help; 
  • Trends in rejections and requests for evidence (45% increase in 2017); and 
  • Inadequate supply of visas. The H-1B visa “lottery” frequently receives many more applications than visas available under the H-1B “cap” (annual limit for visas subject to the cap). Employers exempt from the H-1B cap include colleges/universities, university-affiliated nonprofits (e.g., university teaching hospitals), and nonprofit research institutions (rare). J-1 shortage area waivered doctors are also exempt from the cap. 

What is the process for obtaining an H-1B visa? 

The process to obtain an H-1B visa involves three different agencies: the Department of Labor (DOL), U.S. Citizenship and Immigration Services (USCIS), and the Department of State (DOS). 

  • First step: The employer files a Labor Condition Application with DOL and receives approval. 
  • Second step: The employer files a petition with USCIS and receives approval. 
  • Third step: The employee files for a visa stamp in the passport during non-U.S. travel. 

Once the H-1B petition has been filed, do not travel until after it is approved and effective (i.e., at least October 1). Consider other options if your H-1B visa is not approved by October 1. 

Paths to Permanent Residence 

Many people in the United States on time-limited visas may wish to transition to permanent residence and to consider eventual naturalization as a U.S. citizen. There are several paths to permanent residence: 

  • Family-Based: You must be related to a U.S. citizen or permanent resident. Your employer or stock ownership will not affect your petition. Note that very close family members and unmarried younger children have much shorter wait times than others (e.g., an average of 1.5 years for a spouse, parent, or child under 21 versus 6 years for sons and daughters over 21, 12 years for married sons and daughters, and 13 years for siblings). 
  • Diversity Visa Lottery: You must meet eligibility requirements and come from a country that sends fewer immigrants (not China, India, Mexico, Canada). Your employer or stock ownership will not affect your petition. There is an application period every year, and many who apply will not receive a visa. 
  • Employment-Based: Your employer must sponsor you. Your position, credentials, and stock ownership may determine your eligibility or wait time. These include priority workers (EB-1; 40,000 visas per year); advanced degree holders (EB-2; 40,000 visas per year); skilled and unskilled workers (EB-3; 40,000 visas per year); special immigrants (EB-4; 10,000 visas per year); and investors (EB-5; 10,000 visas per year; requirements include a $1.8 million investment (or $900,000 in targeted employment areas) and creating or saving at least 10 full-time U.S. worker jobs).  

The “PERM”-based green card process requires a certification from DOL that a particular position at a particular company is open for a foreign national because no qualified U.S. workers are available to fill the position. No PERM process is required for EB-1 priority workers (although that category is backlogged) or EB-2 “national interest” workers (although that category is backlogged for those born in China or India). 

Some Tips and Caveats 

  • Individuals from certain countries may be banned from traveling to the United States under various restrictions imposed by the Trump administration. For example, there are travel bans and restrictions currently in effect for individuals from Syria, North Korea, Iran, Libya, Yemen, Somalia, and Venezuela, and new travel bans for individuals from Nigeria, Eritrea, Tanzania, Sudan, Kyrgyzstan, and Myanmar. 
  • Individuals from many countries are experiencing visa issuance delays due to “administrative processing” and issues related to COVID-19 closures and backlogs. 
  • Before traveling in OPT or STEM OPT status, you should consult with the international students office at your university. You must have a job or job offer, a current I-20, and an Employment Authorization Document. 
  • Make sure your social media and web presence (e.g., Google, LinkedIn, Facebook, Twitter, Instagram, online articles) reflect only authorized work, and nothing that could have a negative impact on you. Social media is receiving heightened scrutiny.  
  • Planning ahead is key. Get to know potential employers early. Meet with immigration counsel before starting a company. Consider alternative and creative employment options. 

Miller Mayer has expertise in helping international students navigate their visa options. For advice in specific situations, contact your Miller Mayer attorney.  

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