Individuals: F1, J1, and Self-Petition Green Card Categories

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:

• Work closely with DSO (Designated School Official)
  1. Don’t be afraid to make friends with the DSO. Establish a working relationship with your DSO.  Your DSO is there to help you maintain your status and succeed.  If you ever have any doubt about what you plan to do and how it may affect your status (e.g. dropping out of a class), it is important to first check with your DSO. 

• Maintain full course of study.  Because you are in the U.S. as a student, you are expected to study full-time.  If you do not, you may be considered to be “out of status”.  Maintaining a full course of study generally means:

• 1. Undergraduate students: 12 hours of credits per semester
  2. Graduate students:  certified by DSO
  3. Reduced course load possible, must see DSO first
  4. One-time only, unless for medical reasons
  5. Cannot reduce to less than 50% of full course load

Needless to say, F-1 students should not:

• Work without proper authorization
• Travel without a valid visa and properly endorsed I-20
• Get arrested – Be very careful with crimes and misdemeanors:  DUI, underage drinking, shoplifting, and owning firearms.  Any arrest, even without conviction, may revoke your F-1 visa.

Work Authorization for F-1 Students

There are mainly four main ways for F-1 students to work.

• On-Campus Employment
• Curricular Practical Training (CPT)
• Optional Practical Training – 12 months (OPT)
• STEM OPT Extension – 24 months

On-Campus Employment

• First academic year prohibition not applicable
• Work needs to be either:
  • On school campus, including commercial business, such as bookstore or cafeteria
  • Off campus locations educationally affiliated with the school
• 20 hours per week during school year
• Full time okay when school is not in session

Curricular Practical Training (CPT)

• Permitted before graduation
• Must be authorized by DSO on I-20
• Must be an integral part of an established curriculum
• Not usually allowed during first year of study (exception applies to some graduate students)
• 12 months or more F/T CPT disqualifies student for any post-graduation OPT, but CPT for less than 12 months does not reduce OPT time

Optional Practical Training (OPT)

• Must be related to major
• Okay with self-employment
• Valid for 12 months, including both pre- and post- graduation
• Apply up to 90 days before and no later than 60 days after graduation
• I-765 must be received by USCIS within 30 days after DSO recommendation
• Careful planning with international travel during OPT
• Cannot have more than 90 days of unemployment
• Get new OPT with new level of education

STEM OPT Extension

• 24-month OPT extension permitted if:
• STEM students (science, technology, engineering and mathematics)
• Employer uses E-Verify
• https://www.ice.gov/sevis/stemlist.htm   
• Complete I-983 by employer and student
• https://studyinthestates.dhs.gov/employers-and-the-form-i-983
• Employer to provide formal training plan, regular evaluation, and notification to DHS
• Student responsible to return complete I-983 to DSO and provide annual report on pages 3 to 6

OPT Reporting Requirements

• F-1 must report change in employment to DSO – ASAP or within 10 business days.
• Changes:  new job, change of employer, multiple “short-term gigs,” self-employment, change of address, or unemployed for more than 10 days.
• If there is a change of employer the F-1 must report to the DSO and confirm new employer’s E-Verify participation
• Don’t start employment before receiving authorization

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:

• Au Pair
• Camp
• Au Pair
• Camp Counselor
• College and University Student
• Government Visitor
• Intern
• International Visitor
• Physician
• Professor
• Research Scholar
• Secondary School Student
• Short-Term Scholar
• Specialist
• Summer Work Travel
• Teacher
• Trainee

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:

• Receiving a “no-objection” letter from the home country
• The Department of the exchange visitor will impose exceptional hardship on his/her U.S. citizens or lawful permanent resident spouse or children
• The exchange visitor cannot return to his/her country because he/she would be subjected to persecution on account of race, religion, or political opinion.

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:

• Request by a State Department of Public Health (Conrad 30 Waiver) for agreement to work in an HHS-designated shortage area for three years, or
• Request by the department of Veteran’s Affairs (VA) to practice medicine with the VA for three years
• Request by a Federal Agency to work full time in medical researching or training. 

There are only three ways a person can self-petition for a green card:

• EB-1A Individuals with Extraordinary Ability
• EB-2 National Interest Waiver
• EB-5 Investment Immigration See EB-5 Section

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:

• has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation,
• seeks to enter the United States to continue work in the area of extraordinary ability, and
• the individuals’ entry into the U.S. will substantially benefit prospectively the U.S.

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:

1. Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
2. Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
3. Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;
4. Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought;
5. Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
6. Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;
7. Evidence of the display of the alien’s work in the field at artistic exhibitions or showcases;
8. Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
9. Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
10. Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales

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:

• Physicians working in shortage areas or veterans’ facilities for 5 years
• The applicant must show that:
  • His/her endeavor has both substantial merit and national importance, and
  • The applicant is well positioned to advance the proposed endeavor, and
  • On balance, it would be beneficial to the U.S. to waive the requirements of a labor certification

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.