H-1B Option for Foreign Students

After graduation, foreign students in the United States with F visa status have options for maintaining their lawful immigration status. Options include optional practical training (OPT), obtaining an employment visa, obtaining an investor visa, and permanent residency.

The optional practical training program allows students to work in their field of study for up to 12 months after graduation (up to 29 months for STEM graduates). Graduates need to obtain OPT within 60 days after their academic program ends. Under some circumstances, students can get OPT during their school years (during summer vacations and breaks), but the Immigration Service deducts this time on OPT from the 12 months of available OPT after graduation. When OPT ends, graduates can go back to school, switch to another visa, or leave the U.S. within sixty days after the OPT expires.

OPT can easily transition into one of many employment visas (H-1B, TN, L). The H-1B is the most popular because it only requires that a student graduates with a Bachelor's degree (or equivalent) and have a job offer from an operating company in the United States. The OPT automatically extends while the Immigration Service processes the H-1B, and the H-1B easily transitions into permanent residence status (a green card), if the employer wants to pursue residency on the graduate’s behalf.

Unfortunately, some companies have lost an opportunity of hiring talented foreigners due to misconceptions of what a company’s responsibilities and/or liabilities’ of hiring or “sponsoring” an H-1B employee. Too many times I hear HR managers fear the hiring of an H-1B employee will require them to keep them as an employee even if they are not good performers or just not cut out for the Job. This is not so. Labor laws to each particular state will regulate how your treat an H-1B employee, which is no different than your American or Legal Permanent Resident employee. The only exception is the requirements of reporting to Department of Homeland Security if the company fires the employee. One other pre-hire requirement which at times companies don’t feel is in their best interest is the posting requirement of a new job. On or within 30 days before the date the LCA is filed with ETA, the employer provides notice of the employer's intent to hire H-1B workers. The employer must provide this notice to the bargaining representative of workers in the occupation in which the H-1B worker will be employed. If there is no bargaining representative, the employer must post such notices in conspicuous locations at the intended place(s) of employment, or provide them electronically. This requirement can be justified by the fact of hiring a more talented pool of employees or the lack of qualified applicants.

Once a foreign student graduate gets an H-1B visa and starts working in the United States, their employer can sponsor them for permanent residency. This is a long arduous process, but it may be worth asking about before starting employment at a company in the United States. Also, if the foreign student graduate goes back to school and their research, publications, or discoveries significantly add to their field of study, they may be able to apply for permanent residency without an employer. Significant researchers, scientists, and professors can apply for permanent residency on their own.

In all, these options should be kept in mind when looking for work in the United States, and as foreign students prepare for graduation. Foreign students should not violate their status, and should make sure that employers are willing to work with them in obtaining the immigration status that is needed.

About the Author:

Alfredo Lozano of The Lozano Law Firm is an experienced San Antonio immigration lawyer. Attorney Lozano is an active member of the American Immigration Lawyers Association, State Bar of Texas, Federal Bar Association, and San Antonio Bar Association. He is also Board Certified in Immigration and Nationality Law by Texas Board of Legal Specialization. For more information please call 210-932-3600 or visit http://www.abogadolozano.com.