Understanding U.S. Immigration for the Job Search

Posted · Add Comment

Understanding U.S. Immigration for the Job Search

Ron Cushing

Ron Cushing

About the author: Ron Cushing has been the Director of International Services at the University of Cincinnati for 23 years.  He is responsible for serving the needs of 5,000 nonimmigrant students, faculty, and researchers.  He has served as the Student Scholar Regulatory Representative (SSRR) for NAFSA Region VI (1997-1999) and as a mentor to hundreds of colleagues through his Fundamentals of Foreign Student Advising seminars.  Fundamentals of Foreign Student Advising is an three-day training workshop for international student advisors (held annually in Cincinnati) and is the most comprehensive training program in the field.  Ron has made well over 100 presentations at professional conferences, including regional and national NAFSA: the Association of International Educators; the National Association for College Admission Counseling (NACAC), the Association of International Educators (AIEA); the American International Recruitment Council (AIRC); the National Association of State Universities and Land-Grant Colleges (NASULGC); the American Association of Collegiate Registrars and Admissions Officers (AAOCRAO);  and other organizations.  In past two years many of these presentations have been focused on the use of overseas representatives in the recruitment of international students.  The University of Cincinnati is one of founding member institutions for the AIRC and has taken a lead role in promoting the use of trusted third party representatives in the recruitment of international students within the higher education community.  Ron has helped develop contracts and training manuals for overseas representatives and has traveled extensively identifying and training representatives for the University of Cincinnati.  Ron has helped draft the Certification Standards for the AIRC..  Ron was honored by NAFSA, Region VI, with the Leo Dowling Award of Excellence for his “compassion, integrity and leadership” to the field of international education.  Ron is also a recipient of the University of Cincinnati’s “Just Community” award given to individuals for “outstanding contributions that promote the ideals of a just and caring community” and has been named of one the Communication Departments’ “50 Communication Alumni Champions” based on his success in his career, local community and support to UC.

It is important for students to understand the U.S. immigration process when having discussions with prospective employers about co-op or internship assignments and post-graduation employment.  Students can’t assume that employers understand immigration laws or know what approvals are necessary to prove employment eligibility.  Knowing what you can and can’t do could be the difference in whether or not you get hired or maintain proper immigration status in the U.S.

Student Visa Employment Options

Most international students are in the U.S. studying on F-1 or J-1 status.  Those statuses have several employment options that need to be understood by students.  Once F-1 and J-1 employment options are exhausted, then students must understand their options to transition to employment status, the most common being the H-1B specialty worker status.

 F-1 Optional Practical Training

All F-1 students are eligible for 12 months of OPT employment for each higher degree level they obtain.  In addition, students with degrees in Science and Technology, Engineering and Mathematics can sometimes receive an additional 24-month extension (36 total months of OPT), if employer uses E-Verify system.  OPT is typically used after degree completion, but can be used part-time while enrolled full-time, full-time or part-time during scheduled breaks, or full-time after completion of all required coursework but still writing a thesis/dissertation.  Students applying for the STEM OPT extension are required (with the assistance of the employer) to complete the I-983 “Training Plan for STEM OPT Students”.  It’s required as part of the application and students must use it to complete an annual (at the 12-month mark for STEM OPT) and final (at the conclusion of the 24-month STEM OPT extension) evaluation.  STEM OPT extensions can be obtained twice provided the second degree obtained is at a higher degree level.  OPT employment is authorized by the Department of Homeland Security through the issuance of an Employment Authorization Document, which takes 90 days to obtain.  Students will work through a Designated School Official at the institution they attend to obtain the work permit for OPT.

 F-1 Cap-Gap Employment

Students’ whose OPT expires between April 1 and September 29 of a given year can obtain extended employment authorized from a Designated School Official at the school they graduated from provided their employer has filed an H-1B application for a 10/01 start date and the application is pending (accepted for processing in the lottery) or approved.  The DSO can issue an I-20 form extending the OPT work authorization period in this circumstance.

 F-1 Curricular Practical Training

F-1 students with co-op or internship requirements can also gain work authorization through Curricular Practical Training (CPT).  CPT can only be used during the program of study and is given when work assignments are an “integral” part of their established curriculum.  A Designated School Official at the institution the student is attending will issue an I-20 form with the appropriate work authorization on page 2 of the I-20 form.

J-1 Academic Training

J-1 students receive authorization to engage in Academic Training (ACT) from a Responsible Officer at the institution they attend or the program sponsor in a case where the DS-2019 is not issued by the school.  Students who complete a bachelor’s or master’s degree can obtain 18 months of ACT.  Students who complete a doctoral degree can obtain 36 months of ACT.

Transition to Employment Visas

Federal regulations require that student employment terminate at the conclusion of the authorized practical or academic training. However, students on an F‐1 status, or students on a J‐1 status who are not subject to a two‐year home residency requirement, may continue to be employed, if they receive approval for a change in immigration status.  The most common immigration statuses that allow for work beyond the student visa include: H-1B Specialty Worker; J-1 Exchange Visitor; TN Trade NAFTA (for Canadian and Mexican nationals); and E-3 (for Australian Nationals).

 H-1B Specialty Worker

H-1B specialty workers are employees who have skills and experience of a special nature that require at least a bachelor’s degree or equivalent combination of education and experience.  H-1B employees have a maximum stay of six (6) years in the category no matter how many different employers they have.  Employment can be granted for a maximum of three (3) year increments.  Extensions beyond the six year limit are available if an employer has initiated green card efforts prior to the end of the fifth year of H-1B status.
The government’s H-1B fiscal year is from October 1 to September 30.  Sixty-five thousand (65,000) H-1B petitions can be approved during a fiscal year.  Additionally, twenty thousand (20,000) petitions can be approved for individuals who have obtained a Master’s degree or higher from a U.S. institution.  H-1B employees of higher education institutions, nonprofit research organizations and government research organizations are not counted toward the quota.  The employer files the H-1B application with the Department of Homeland Security.  Employers not exempt from the annual quota need to be ready to file the H-1B application on April 1 in hopes of getting the application selected for processing in the lottery.  Each year more applications than allotted H-1B’s are received by DHS so they select petitions for processing based on a lottery system.

J-1 Exchange Visitor

J-1 status holders are referred to as Exchange Visitors. Institutions must be designated as an exchange visitor program in order to issue a DS-2019 for J-1 status.   Typically, educational institutions and governmental organizations have such designation.  J-1 exchange visitors are limited to work on the premises of the institution that issued the DS-2019.  J-1 exchange visitors can fall into one of the following categories: Professor, Research Scholar, Short-Term Scholar, Specialist, Student (degree and non-degree), AuPair, Camp Counselor, Alien Physician, Trainee, Government Visitors, and Summer Work.  Each category has its own time limitations, but the most common categories, Professor and Research Scholar, have a five year maximum in the classification.

TN Trade NAFTA

Canadian and Mexican nationals can be admitted for employment under the terms of the North American Free Trade Agreement (NAFTA). The type of employment must be included on the approved list of occupations (https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-17197/0-0-0-21051.html) and can last up to three years in duration, although the employment can be renewed multiple times.  Employees have to provide the job being offered fall the list of occupations, prove their citizenship and degree qualifications.  The TN-1 classification is for Canadian nationals and the TN-2 classification is for Mexican nationals.  In the case of Canadian nationals, TN-1 status can be obtained immediately simply by going to the border with the appropriate supporting documentation.

E-3 Status

Australian nationals who have skills and experience of a special nature that require at least a bachelor’s degree or equivalent combination of education and experience can qualify for an E-3 visa. E-3 employees have a maximum stay of two years that can be renewed. The E-3 visa requires the employer to obtain a Labor Condition Application from the Department of Labor. This status can be applied for in country using form I-129 or abroad at the U.S. Consulate/Embassy.