F-1 Student Status
Most international students in the U.S. are on F-1 status. Students may be in high schools or language schools. However, the following discussion applies mainly to students who are in universities working towards a bachelor’s degree or higher.
Maintaining F-1 Status
It is very important for F-1 students to maintain their status. Falling out of status may interrupt schools or affect the F-1 student’s ability to switch to work status such as H-1B following graduation.
To maintain one’s status, the F-1 Student should always:
Needless to say, F-1 students should not:
Work Authorization for F-1 Students
There are mainly four main ways for F-1 students to work.
Curricular Practical Training (CPT)
Optional Practical Training (OPT)
STEM OPT Extension
OPT Reporting Requirements
The J-1 programs are managed by the Department of States. The Department of States points out on their website:
The J-1 Visa provides countless opportunities for international candidates looking to travel and gain experience in the United States. The multifaceted programs enable foreign nationals to come to the U.S. to teach, study, conduct research, demonstrate special skills or receive on the job training for periods ranging from a few weeks to several years.
See: https://j1visa.state.gov/programs. There are many types of J1 visitor programs. Each has its own rules about qualifications, duration of stay, and permissible activities. The following are the types of J-1 programs:
The Department of State’s website contains useful information of the programs.
Work Authorization for J-1 Exchange Visitors
Some J-1 programs include work authorization to participate in the program. For example, as an Au Pair, the J-1 exchange visitor can work for the family in which he/she is placed as an Au Pair. However, the Au Pair is not eligible to work outside of the family.
We receive more questions from J-1 visitors who are students concerning their ability to work. The law is clear on this.
There are two types of employment authorizations available for students on the J visa:
(1) Student employment or
(2) Academic training
In both situations, the responsible officer must approve the exchange visitor’s participation in the activity. The difference between the two is that student employment occurs on campus unless there is serious, urgent, and unforeseen economic necessity; and, academic training is directly related to the student’s major field of study and in most cases, occurs off campus and for a specified period of time.
Exchange visitors who are participating as College/University Students (degree and non-degree) are permitted to work and are limited to twenty (20) hours per week, except during school breaks and annual vacation, unless authorized for economic necessity. Some examples of student employment are:
Scholarship, fellowship, or assistantship: If the employment is required because of a scholarship, fellowship, or an assistantship, such activity usually occurs on campus with the school as the employer. In certain circumstances, however, the work can be done elsewhere for a different employer. For example, an exchange visitor may work in a government or private research laboratory if the exchange visitor’s major professor has a joint appointment at one of those locations and the employment is supervised and counts towards the exchange visitor’s degree;
On campus: The Exchange Visitor Program regulations allow for jobs on-campus that are related and/or unrelated to study, which stipulates that the work can be done “on the premises” of the school. The school does not have to be the employer. For example, exchange visitors could work for a commercial company such as a food service company operating on the campus;
Off campus: Exchange visitors may be authorized off campus employment by the program’s responsible officer (RO) when “necessary due to serious, urgent and unforeseen economic circumstances” that have arisen since the exchange visitor’s sponsorship on the J visa.
J-1 Two-Year Residence Requirements
Because the J-1 program is intended to promote the exchange of ideas, education, and experience between the U.S. and other countries, participants of the J-1 program may be subject to the 2-year residence requirement. Generally, a J-1 exchange visitor who is subject to the 2-year residence requirement must return to his/her home country for at least two years, before he/she may return to the U.S. on work status such as H-1B, or to apply for U.S. permanent residence.
A J-1 exchange visitor may be subject to the two-year residence requirement if he/she has received funding to participate in the J-1 program either through the J-1 visitor’s government or the U.S. government. Or, the J-1 visitor may be subject to the two-year residence requirement because he/she is in the U.S. gaining experience that is on the “skills list” maintained by the Department of States.
J-1 exchange visitors who are subject to the two-year residence may apply for a waiver of the requirement on one of the following grounds:
J-1 Foreign Medical Graduates
J-1 Foreign Medical Graduates (FMG) are subject to the 2-year residence requirement. They are eligible to apply for a waiver based on the following grounds:
There are only three ways a person can self-petition for a green card:
EB-1A Individuals with Extraordinary Ability
The EB-1A is similar to the O-1 nonimmigrant visa, as they share many of the same criteria. However, USCIS is a lot more restrictive in adjudicating EB-1A cases than the O-1 cases, because the EB-1A will lead to permanent residence, whereas the O-1 is still a nonimmigrant visa. In other words, the EB-1A applicant is asking USCIS to issue a green card, and it only stands to reason that USCIS will be looking at the application a lot more closely.
Although the EB-1A allows self-petition, it does not mandate it. Applicants who have employers may ask the employer to submit the EB-1 petition.
The law defines an individual with extraordinary ability as a person who:
Requires for EB-1A:
Extraordinary ability means a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.
A petition for an alien of extraordinary ability must be accompanied by evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.
Such evidence shall include evidence of a one-time achievement (that is, a major, internationally recognized award), or at least three of the following:
If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility
It should be noted that after the applicant has met the “one-time achievement” award test, or submitted at least 3 of the listed evidence, USCIS will conduct one more test – the “Totality of Circumstances” test. This means an USCIS adjudicator may still reject an application if the adjudicator feels that the applicant is still not an “individual is one of that small percentage who have risen to the very top of the field of endeavor”.
EB-2 National Interest Waiver
There are two main types of EB-1 National Interest Waiver:
The requirement for a physician to work in a shortage area or veteran’s facility for 5 years is fairly straight forward. This really applies to foreign physicians who are able to secure employment that meets the requirements.
The second way to obtain the national interest waiver is more opened. However, it should be noted that because the national interest waiver is still an “EB-2” petition, the applicant must still have either a bachelor’s degree and five years of progress experience, or a master’s degree. There is no restriction for this type of national interest waiver application to be in any specific discipline. Successful cases cover a wide range of endeavor. Our firm has successfully obtained EB-2 national interest waivers for individuals who are in the areas of arts, crime investigation, business, science, engineering, etc.