A guidance on how foreign national students already in the U.S. can obtain work permits, extension of work visas, and finally adjust their status to lawful permanent residents

1. Immigration for
foreign national
students
Susan Bond
Law Office of Susan Bond

2. This presentation will cover the following
topics:
• Work authorization for foreign national (FN) students while
enrolled in school and upon graduation
• F-1
• J-1
• Changing your status from F-1 to a different non-immigrant
status that authorizes employment
• Applying for Lawful Permanent Residence (LPR)

3. WORK AUTHORIZATION WHILE
IN F-1 STATUS
Two kinds of training that allow FN
students to work while in F-1 status:
•CURRICULAR PRACTICAL TRAINING
(CPT)
•OPTIONAL PRACTICAL TRAINING (OPT)
– This includes a 17-month STEM
extension

4. Overview of CURRICULAR PRACTICAL
TRAINING
MUST RELATE TO
DEGREE
The CPT must relate to
the FN’s major and the
experience must be part
of the program of study.
OPT ELIGIBILTY
If FN has 12 months or
more of full-time CPT, FN
is ineligible for OPT, but
part-time CPT is fine and
will not prohibit FN from
doing OPT.
SIGNED LETTER / AGREEMENT
CPT requires a signed
cooperative agreement
or a letter from FN’s
employer.
GRADUATE SCHOOL
When FN enrolls at the
graduate level, the
designated school official
(DSO) may authorize CPT
during the first semester
if the program requires
this type of experience.
FULL TIME OR PART-TIME
FN can work on CPT
either full-time or parttime.
USE I-20 TO WORK
The DSO will provide the FN
with a new Form I-20,
“Certificate of Eligibility for
Nonimmigrant Student
Status,” that shows that the
DSO has approved the FN for
the particular employment.

5. Overview of OPTIONAL PRACTICAL
TRAINING
MUST RELATE TO
DEGREE
OPT must relate to the
FN’s major or course of
study.
HOW TO OBTAIN WORK
PERMIT
The FN must apply for work
authorization by filing a Form
I-765, “Application for
Employment Authorization,”
with U.S. Citizenship and
Immigration Services (USCIS)
and paying a filing fee.
12 MONTHS FOR EACH LEVEL
The FN can apply for 12
months of OPT at each
education level i.e. 12
months for Bachelor’s
and 12 months for
graduate level
PROCESSING TIMES
USCIS will send the FN a Form I766, “Employment
Authorization Document” (EAD)
upon approving the Form I-765.
Processing times for the EAD
can be up to 90 days. The FN
must wait until receiving the
EAD to start work.
NEW FORM I-20
The DSO will provide the
FN with a new Form I-20
that shows the DSO
recommendation for this
employment.
LIMIT ON WORK HOURS
While school is in
session, the FN may only
work 20 hours per week.

6. 17 month opt stem extension
Some students qualify for an additional 17 months of OPT under the following
circumstances:
•The degree for the student’s current period of post-completion OPT is a Bachelor’s,
Master’s or Doctoral degree in a science, technology, engineering or mathematics
(STEM) program.
•The employer from which FN is seeking employment uses the E-Verify program.
•FN has not previously received a 17-month extension of OPT.
•The DSO must provide the FN with a new Form I-20 that shows the DSO
recommendation for this employment.
•The FN must apply for work authorization by electronically filing a Form I-765 with
USCIS and paying a filing fee. USCIS will send you an EAD upon approving your
petition.
•The FN may continue to work on his/her expired EAD for OPT up to 180 days while the
17-month extension petition is pending if these conditions are met:
– The FN is currently in a period of post-completion OPT.
– The application for the 17-month extension was filed prior to the expiration of
the current OPT.

7. WORK AUTHORIZATION AFTER completion
of degree program
WORK AUTHORIZATION IN J-1 STATUS
H-1B SPECIALITY OCCUPATIONS
TN NAFTA PROFESSIONALS
OBTAINING PERMANENT RESIDENCE
O VISA FOR INDIVIDUALS WITH EXTRAORDINARY ABILITY
The above-mentioned types of work authorization
are available to FN students who are in F-1 status,
both during the time they are enrolled in classes and
after graduation.
After the FN completes her or his studies, she can
still obtain work authorization through various ways.

8. WORK AUTHORIZATION WHILE IN J-1 STATUS
•
Employment is authorized pursuant to J-1 status, and there is
no application required to prove work authorization. The J-1 is
usually issued in one year increments.
•
Some exchange visitors are subject to a 2 year home residence
requirement, while others aren’t. If the FN is not subject to the
2 year home residence requirement, s/he may apply to change
to another non-immigrant status, assuming they are otherwise
eligible for that status. If the FN is subject to the 2 year home
residence requirement, s/he must obtain a waiver of the
requirement.
•
An exception is made for those changing from J-1 status to O
status for extraordinary ability—although few
students/exchange visitors will meet the stringent
requirements for this classification, there is no requirement that
you get a waiver before changing to O status.

9. Changing from F-1 to a non-immigrant
status that allows employment
H-1B
Speciality occupations
TN NAFTA
Limited to foreign
nationals from Canada
and Mexico
O VISA
For foreign nationals
with extraordinary
ability
Keep in mind that a student on F-1 is
given a 60 day grace period to depart,
apply for a change of status or reenroll in school. There are
exceptions/special rules regarding
this 60 day period for a FN who has
applied to change to H-1B status, as
outlined below under “Cap Gap
Rules.”
On the left are some of the most
common non-immigrant visa
categories that grant work
authorization.

10. H-1B Speciality occupations
•
This category allows a FN to obtain work authorization for up to 6
years for a US Company, University or Research Organization.
•
The basic requirements are that the position to be filled is a
professional level position, requiring at least a bachelor’s degree or
the equivalent; and that the FN possesses at least a bachelor’s
degree in the field that the job offer is in.
•
The H-1B category covers professional occupations, such as civil
and mechanical engineers, computer science professionals,
scientists, professors, research associates, etc.

11. H-1B Speciality occupations
•
The FN must have an offer of employment (it can be part-time
or full-time) but the FN may not be self-employed on H-1B.
• There are limits on the numbers of H-1B visas issued each
fiscal year, with only 65,000 new visas issued each year +
an additional 20,000 for FN who hold a Master’s degree.
The new fiscal cap starts October 1 of each year, and
applications may be submitted on or after April 1 for an
employment start date of October 1.
• Institutions of higher education and not-for-profit
organizations affiliated with institutions of higher
education are exempt from the H-1B cap.

12. •
•
The Cap Gap Rules: An employer can file an H-1B on behalf of a FN no
sooner than April 1 for a start date of employment on October 1.
What if the FN’s OPT expires prior to October 1st? The Cap Gap Rule
allows the FN to have continued work authorization if the student is
currently in valid F-1 status, and a period of OPT, and an application to file
for H-1B has been filed while the FN is in status. Work authorization is
automatically extended during this time, and until either September 30th,
or the H-1B petition has been adjudicated.
• If the H-1B is denied, work authorization ends and the 60 day grace
period normally allowed for F-1 students begins.
• If the FN is applying for a job with an employer that is not subject to
the H-1B cap (university for example), the Cap Gap Rule is not needed,
as the H-1B employment may begin at any time during the year, and
not subject to the October 1st start date.
• If the student is not in valid F-1 status, the Cap Gap Rule is not
available.

13. TN NAFTA PROFESSIONALS
• TN NAFTA Professionals: This is a non-immigrant status
that is available to citizens of Mexico and Canada,
pursuant to a treaty agreement between the U.S.,
Canada and Mexico.
• TN status is a good option for those who may be seeking
employment with the private sector, and the company is
not receptive to the H-1B process, which may be seen as
cumbersome.
• There are limited professions that are eligible for TN
status, which are listed on the NAFTA job list. Chemists
are on the list of professions covered by NAFTA.
• TN visas may be issued in 1-3 year increments, and there
is no limit on the number of years you may hold TN
status, as there is for H-1B.

14. O Visas for extraordinary ability
• The O Visa category for Individuals of Extraordinary Ability: A
non-immigrant status that allows an individual to live and work in
the United States. This category is an option for those who do not
have an employer willing to sponsor the H-1B visa, and they do
not qualify for the TN visa.
• The process for an employer is less burdensome, however the
criteria for eligibility is very high, and includes in part:
• The FN must prove that s/he has risen to the top of their field
of endeavor, and has national or international acclaim.
• Proof of the above would be publications in scientific
journals, significant contributions to the field of science;
awards and recognition from the scientific community.
• This category is not usually beneficial to a student upon
graduation, unless that student is exceptional.

15. SEEKING PERMANENT RESIDENCE
THROUGH EMPLOYMENT BASED VISAS
Now that you have obtained non-immigrant status and work
authorization, how do you become a permanent resident? What different
avenues are available and what factors are relevant?
Key issues to remember:
• Obtaining permanent residence/a green card in the United States,
requires an offer of full-time employment by a US company or university,
with few exceptions as outlined below.
• The processing times for permanent residence will be based on factors
such as the position to be filled and the requirements for the position. For
example, if it is a higher level position requiring a Master’s or Ph.D, the
processing times are faster, because fewer people are qualified for these
positions and fewer people are applying/in line. The country of birth of the
applicant also impacts processing times.
• Even while your permanent residence is in process, you must maintain
your non-immigrant status and work authorization. Having permanent
residence on file does not automatically grant work authorization.
•

16. Eb-3 - Skilled Worker and Professional
positions
• Job requires two year or Bachelor’s degree
• The employer must first file a Labor Certification
to prove that there are no eligible US workers
available for the position.
• Assuming there are no US workers available, the
employer files an I-140 Visa Petition on behalf of
the employee.
• Once the I-140 is approved, and/or the priority
date is current, the application to become a
Permanent Residence is filed.

17. EB-2 – ADVANCED DEGREE AND
EXCEPTIONAL ABILITY
Members of the Professions with an Advanced Degree:
•The employer must first file a Labor Certification to prove that there
are no eligible US workers available for the position.
•Assuming there are no US workers available, the employer files an I140 Visa Petition on behalf of the employee.
•Once the I-140 is approved, and/or the priority date is current, the
application to become a Permanent Residence is filed.
National Interest Waiver.
An individual may qualify for the EB-2 category of “Exceptional
Ability” and may avoid the Labor Certification process, if the position
is one that is in the National Interest by filing a National Interest
Waiver.
•National Interest means that the job will benefit the US healthcare,
environment, education system, etc. These positions are usually
funded by government grants and must substantially benefit the US
on a national level, and the FN must play a critical role in the work
that’s being done.

18. EB-1 – EXTRAORDINARY ABILITY
• Aliens of Extraordinary Ability:
• No requirement for offer of employment and no labor certification
requirement to show there are no available US workers. The
standard is very high—think rocket scientists, cutting edge
research to save lives and cure diseases or inventions that make
our country safer.
• The person who qualifies for this category has already risen to the
top of his/her field of endeavor or has accomplishments that are
not normally found among his peers, such as winning national or
international awards.
• Outstanding Researcher or Professor:
• This category does require an offer of full-time employment but
does not require a labor certification to prove there are no US
workers. The standard of evidence is similar to that listed above
but not as stringent in that the person does not need to prove
he/she has risen to the top of the field.
• The USCIS does closely scrutinize whether there is an offer of fulltime employment. If the position is a not a tenured track position
at a university, this may be problematic, so post-doc researchers
may have problems applying through this category. Researchers
may pursue employment at scientific research organizations
however, and qualify for this category.

19. STUDY
AND WORK
SMART
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