Virginia, US
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| Katie Wu

Employment Visa Options for Graduating Students

Congratulations to the 2016 graduates! As we are in the midst of the summer vacation months, a prevalent question that may arise for foreign nationals currently studying in the U.S. on F-1 student visas, are the types of visa options that will enable them to remain and work in the U.S. now that their studies have completed. Relevant non-immigrant (temporary) options that may be available to assist graduating students as they plan ahead follows:

F-1 Optional Practical Training

Most F-1 student visa holders are entitled up to 12 months of full-time Optional Practical Training (“OPT”) at each degree level. The OPT essentially permits the student to engage in employment in a field that is  related to his/her course of study. Under new rules that were recently implemented, students who graduate with a qualified Science, Technology, Engineering, or Mathematics (“STEM”) degree may now qualify to apply for an additional 24-month STEM extension of their post-completion OPT.

The OPT option is perhaps the most widely utilized avenue to employment for F-1 students. However, the period of employment that a student is permitted under OPT is of limited duration, so many seek other alternatives that will permit them to continue working in the U.S. once their OPT period concludes.

H-1B Visa – Specialty Occupation

The H-1B visa is available to companies to sponsor individuals employed in a  “specialty occupation “ – a position that requires the possession of least a U.S. Bachelor’s degree (or foreign equivalent) in a field related to the position. The H1B visa is subject to an annual cap of 65,000 regular cases and an additional 20,000 available to individuals that have graduated with an advanced degree (master’s or higher) from a U.S. educational institution.

Due to the high demand of applicants the last few years, a random lottery has been conducted to determine which of the cases filed would be selected for adjudication. As an example of the demand this 2017 FY, the U.S. Citizenship and Immigration Services (“USCIS”) confirmed that it received over 236,000 H-1B cap petitions! Moreover, individuals of Australian, Singaporean, or Chilean nationality may also qualify for free trade visas (E-3 or H-1B1) that have very similar requirements to the H-1B visa, but have not been subject to the lottery system of selection.

TN Visa – North American Free Trade (“NAFTA”) Professional Workers

The TN visa may also be an attractive option for Mexican or Canadian nationals whose profession is designated on the NAFTA list. The applicant must also meet the requisite requirements, education, and/or experience of the profession and demonstrate home ties abroad. Unlike the H-1B, the TN is not subject to the lottery system.

E-2 Visa – Treaty Investor

For the more entrepreneurial-spirited individuals who have the capital to invest into and operate a business in the U.S., the E-2 treaty investor may also be a viable option. The E-2 classification permits a national of a treaty country to work in the U.S. by investing a lawfully obtained and substantial amount of capital into a U.S. enterprise. Examples of types of business that E-2 applicants have invested into and operate include franchises, restaurants, and countless other business ventures. Nationals of a treaty country can also seek employment with a U.S. company at least 50% owned by nationals of that same country. There is also an E-1 visa available to treaty traders as well

O-1 Visa – Extraordinary Ability

To qualify for an O-1, the applicant must demonstrate extraordinary ability in the sciences, arts, education, business, or athletics, or have a demonstrated record of extraordinary achievement in the motion picture or television industry. While the O-1 visa category is reserved for those who are at the top of their field of endeavor, it is not only exclusively limited to Hollywood celebrities or professional athletes . Instead, individuals with a graduate degree after having had a few years of demonstrated achievements may potentially qualify as well.

L-1 Visa – Intracompany Transferee

The L-1 visa is available to certain employees who have worked for a parent, branch, subsidiary or other affiliates of the U.S. employer outside of the U.S. for at least one full year out of the last three in an executive or managerial (L-1A) or specialized knowledge (L-1B) capacity. Because the L-1 requires one full year of employment outside of the U.S., this may not be an immediate option for recent graduates. However, if they do find a job overseas that has a qualifying corporate office in the U.S., the L-1 is something to consider after the 1 year of employment is fulfilled.

Graduation is certainly an exciting time for many. With careful planning and an understanding of the different visa options that may be available, many students may discover that there are options that will permit them to work in the U.S. upon graduation.

Have questions? Please feel free to Katie Wu at kwu@fragomen.com or (949) 862-9461.