On Jun 19 2018 by Andrew J. Zeltner

Now What? Planning a Future for Graduating Foreign Students in Extraordinary Times

Graduation caps are soaring across the United States, as millions of college students complete their studies and prepare to enter the workforce. For international students studying in the United States, there is a palpable uncertainty about the future, as the immigration landscape has become incredibly daunting and highly restrictive. Determining the best course of action has always been a challenge, but with the United States Citizenship & Immigration Services (“USCIS”) issuing substantially more case challenges and denials, it is even more incumbent upon students to assess their options and determine the most opportune path to securing coveted work authorization in the U.S. 

A student on a typical F-1 visa can obtain authorization to work for one-year after graduation pursuant to Optional Practical Training (“OPT”). Those students working in a STEM field are also currently eligible to obtain an additional 24 months of work authorization, although the Trump Administration is expected to propose regulations eliminating the ability to obtain this extension. Upon completion of OPT, the student is also afforded a 60-day grace period, during which they are eligible to apply for a change of status. However, practically speaking, both employers and students should be assessing post OPT options as soon as possible.  

A common initial option to consider is the H-1B visa, which requires the foreign national to possess a Bachelor’s degree or higher in a field of study related to their offer of employment. These applications must be filed in the first week of April and there is a cap on the number of H-1B’s that can be issued each year.  This year there were approximately 190,000 H-1B applications for 85,000 available H-1B visas. The H-1B is initially valid for three years and can be extended for an additional three-year period. H-1B status is also very valuable because it is a “dual intent” status, which means that a foreign national is free to pursue a green card and need not demonstrate an intent to return to their home country. 

If a student misses out on the H-1B cap, the L-1A or L-1B visa also merits strong consideration. As an initial matter, the student must work full-time for one-year abroad for a foreign company.  After completion of the one-year requirement, a majority owned U.S. parent, affiliate or subsidiary company, can sponsor the employee. An individual acting in a managerial capacity would file under the L-1 A category, while an employee with unique or distinct knowledge of the company’s business processes would be eligible to file an L-1B case.  

Those students with an entrepreneurial bent, may also wish to consider the O-1 visa, as this option is available to those who can demonstrate “extraordinary ability” in their chosen field of endeavor. While the O-1 standard is challenging, many students who have founded/co-founded startup companies have been able to leverage such accomplishments into successful O-1 visa applications.    

Additional “startup” visa paths should also include examination of the EB-5 or E-2 visa. The EB-5 visa program, established in 1990, requires an investment of at least $500,000 or $1,000,000 (depending on the location of the investment) into a business that would create at least 10 U.S. jobs. The E-2 visa is only available for nationals of countries that have bilateral investment treaties or treaties of friendship, commerce and navigation with the US. The amount of the required investment varies depending upon the type of business (e.g., a consulting firm may require a relatively small investment – – sometimes under $100,000 – – whereas a manufacturing company will require a much larger investment). The investor will need to prove that he/she has other available funds in addition to the funds invested in the US business and/or that the business will be employing one or more US workers. The investor can (but is not required to) work in the business. If the foreign national is not a citizen of a treaty country, there is an option to acquire citizenship through investment.

A student can also consider returning to school. Either retaining or going back to F-1 status may provide enough time until H-1B numbers again become available (assuming, of course, the same or a different position with the same or a different employer may still be available to the foreign national many months later at the conclusion of studies). Pursuing an advanced degree, in addition to its educational advantages, and in addition to buying time until H-1B numbers are available, adds various benefits under the immigration laws. Indeed, the advanced degree obtained in the U.S. makes the foreign national eligible for a separate quota of advanced-degree H-1B numbers.

Of course, these are just a sample of the potential visa options that area available to foreign students.  Clearly, graduating international students that wish to remain in the United States to live and work, either on a temporary or permanent basis, need to evaluate their long-term goals and map out a career path, along with a carefully crafted immigration plan that will help them to achieve their career goals.  

 

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

Reprinted with permission from the June 18, 2018 edition of the The Legal Intelligencer© 2018 ALM Media Properties, LLC. All rights reserved. 
Further duplication without permission is prohibited. ALMReprints.com  877-257-3382  reprints@alm.com.