OPTIONS TO STAY IN THE US:
F-1 visa students have many options to stay in the US. But planning ahead is critical!
If you would like to extend your stay and work in the US after completing an F1 student visa, it is important that you research your options and plan ahead. The US Immigration and Customs Services (USCIS) offer a confusing array of visa options, shifting requirements, eligibility and quotas.
Here are many of the most common options for remaining in the US after completing education on F 1 visas.
1) Optional Practical Training (OPT) For F-1 students
OPT is temporary employment directly related to an F-1 student’s major area of study. F1 visa students can apply to receive up to 12 months of total OPT employment authorization. Students may complete this work in 2 different ways:
- Pre-completion OPT before completing academic studies. F-1 students must have been enrolled in school for one full academic year and work only part-time while school is in session. They may work full time when school is not in session.
- Post-completion OPT after completing academic studies. F-1 students may work part-time (min 20 hours per week) or full-time.
All periods of pre-completion work OPT will be deducted from the total available 12 months to determine the available post-completion OPT available for the student. OPT application and work guidance are usually handled through your university international student office.
When to apply
Apply early as you don't need to wait for a job offer. Typically post completion OPT students apply 90 days before the last day of your final quarter. You can apply as late as 60 days after a program, although late applications are strongly discouraged. USCIS only allows F-1 students to stay unemployed 90 days past their program end date before having to leave the US.
24 Month STEM OPT extension
Once an F-1 student is working in a post completion OPT, the STEM OPT extension allows students with certain science, technology, engineering, or math (STEM) degrees to apply for a 24 month extension to their OPT authorization bringing the total maximum OPT period to 36 months. STEM graduates often use this extension time to line up a transition to another visa for longer term employment. USCIS must receive the STEM OPT extension application as early as 90 days before or no later than the end of the OPT period.
Using OPT time wisely
If your objective is to stay and work in the US after OPT expires, it is best to use all your OPT authorization after you graduate to allow time after graduating for planning and transition. Many visa options outlined below, such as an F-1 to OPT to H-1B can have long lead times and qualifications that require you carefully map out the steps, find employer sponsors and make good use of the limited OPT time you have.
2) Continue Education
Students often elect to pursue additional education or graduate degrees after completing their F1 visa undergraduate studies. Students need to work with their international student advisors to timely update their I-20 or DS-2019 to accurately reflect their new school and major and insure they do not violate their F-1 expiration before transitioning.
3) Start or invest in a business
The US offers visa options to encourage investment in the US:
- E-2 visa: Allows nationals of a treaty country to be admitted to the US when they:
- Have invested, or are actively in the process of investing, a "substantial amount" of capital in a bona fide enterprise in the US.
- Are seeking to enter the US solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.
- "Substantial amount" of capital definition varies depending on the business plan and needs of the business.
- Initial period of stay is 2 years with no maximum number of 2 year extensions.
- EB-5 visa: For non-citizens who invest at least $500,000 in the US in USCIS qualified investments that create US jobs.
- Period of stay: Can be permanent as investors and their families are eligible for a green card or permanent residence
- Investments can be made directly or through regional centers and include a wide variety of options including real estate, businesses and restaurants among others.
- Investments can either be passive or actively managed by the investor.
4) Non-Immigrant Work Visas
Non-immigrant visas are for temporary stays in the U.S. and typically have an expiration date. The process for obtaining a non-immigrant visa involves an application to the USCIS and typically an interview. Most non-immigrant visas fall under the following classifications:
Requiring a US institution or employer sponsor
- E-3 visa: For Australian nationals coming to the US solely to perform services in a specialty occupation.
- H-1B visa: For certain specialty skill occupations requiring bachelor's degrees.
- H1-B visa quota caps are quickly used up within days of release on April 1st of each year. For 2018 Congress mandated a regular cap of 65,000 H1-B visas and a further H1-B Master's Exemption cap of 20,000 visas available for Master's degree or higher applicants. For 2017 USCIS reached the quota on April 7th after receiving 236,000 applications in 5 days for the 85,000 available visas.
- Cap-Exempt sponsors: Some H1-B sponsors are exempt from the cap including certain (1) higher education institutions, (2) non-profits affiliated with higher education institutions, and (3) nonprofit research or governmental research organizations.
- Start date: The earliest start date for an April 1st application is October 1st of each year.
- L-1 visa: For employee transfer of a multi-national company or affiliate, or for establishing a new US office.
- Employee must be seeking to provide service in an executive or managerial capacity.
- Employee must have worked for the company for at least one continuous year out of the last three years.
- Maximum stay of 7 years with extensions for a manager or executive, 5 years for a specialized knowledge employee and 1 year if establishing a new US office
- O-1 visa: For non-citizens with extraordinary ability in the arts, science, movies, education, business or athletics, intending to engage in official activity in the US. An advisory consultation letter from a qualified peer group is generally required to qualify.
Involving business activity
- E-1 visa: For a Treaty Trading employee to carry on substantial international trade with their home qualifying treaty country.
- Example trade items include: goods, services, international banking, insurance, transportation, tourism, technology and its transfer, and some news-gathering activities.
- Initial period of stay is 2 years with unlimited 2 year extensions.
- TN visa: For qualified Canadian and Mexican citizens engaging in NAFTA authorized professional business activities in the US.
- Example qualifying professionals include accountants, engineers, lawyers, pharmacists, scientists, and teachers
- Initial period of stay is up to 3 years with extensions available
5) Immigrant Work Visas
Immigrant work visas are for foreigners seeking legal permanent residence and possibly US citizenship. Foreigners applying for an immigrant work visa usually need a U.S.-based sponsor approved by the USCIS (U.S. Citizenship and Immigration Services).
- EB-1 visa: For non-US citizens who are exceptional professors and researchers.
- EB-2 visa: For non-US citizen professionals with advanced degrees (or their equivalent) and who have an exceptional ability in arts, sciences, or business that benefit the United States economy, cultural or educational interests, or welfare.
- EB-3 visa: For non-US citizens who are skilled workers or professionals.
- EB-4 visa: For non-US citizens who are broadcast professionals, religious workers, armed force members, or Afghan and Iraqi translators, among others.
EB-2, EB-3 and EB-4 immigrant work visas require a Permanent Labor Certification from the Department of Labor (DOL) certifying to the USCIS that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed US workers.
6) Marry a US Citizen
If you marry a US citizen, you may not be eligible for US citizenship immediately, but you usually become eligible for transitioning from an F1 visa to green card. And there are no limits or waiting periods for spousal green cards. A green card can then lead to citizenship. It is important to note that, even though you are married to a US citizen, you will have to fulfill certain criteria before you can be granted a green card. It is very important that you not be found “inadmissible” by breaking immigration laws or committing crimes.
You will be eligible to apply for citizenship three years after obtaining a green card. In order to qualify for citizenship you will need to demonstrate good moral character, be able to speak, read, and write English, and pass a US civics test. Typically you will be interviewed by USCIS and be tested on your knowledge of civics and the English language.
7) Green Card Lottery
The green card lottery, or "Diversity Immigrant Visa Program" makes up to 50,000 immigrant visas available annually, drawn by random selection among all entries to individuals who are from countries with low rates of immigration to the United States. Most lottery winners are from outside the US and immigrate through consular processing and issuance of an immigrant visa. This program is offered for free by the US State Department during a registration period that usually begins in October of each year and ends in early November.
When is an F-1 Student Expected to Leave?
It is important to legally maintain your visa status when studying in the US. After you complete your program of study and any authorized period of optional practical training, F-1 students have 60 days after completion of the program to leave the US (the end date listed on your Form I-20) . To extend your stay in the US, speak with your designated school official (DSO) or an immigration attorney to learn more about doing one of the following:
- Transfer to another education institution.
- Change your education level, for example from a bachelor degree to masters.
- Apply to change status to a different visa status like those listed above
Options if You Overstay F-1 Student Visa
Overstaying F-1 visas means you are no longer in a valid immigration status. If you are in the US and you have overstayed an F-1 student visa, your best option is usually to return to your home country as soon as possible. When you are not in a valid immigration status, you are usually not able to apply for a change of status inside the US. You would need to go through consular processing in your home country for a new visa in order to remove the overstay issue.
If you continue to stay in the US out of status, you can begin to accrue "unlawful presence" which can make you inadmissible to the US and barred from reentering the country. For F1visa students admitted for duration of stay, unlawful presence usually doesn't begin until the government makes a formal determination you are here unlawfully. Often these determinations are made when a student applies for a change of status after overstaying their visa.
The consequences of unlawful presence are substantial. For example, 180 days of unlawful presence can result in a finding of inadmissibility to the US and a ban on reentry for 3 years. A year or more of unlawful presence can cause a 10 year ban on reentry. There are some exceptions where you may not accrue unlawful presence if:
- you have a pending application for adjustment or extension of status
- you are a battered spouse or child and can show a connection between the overstay and the abuse
- you are eligible for Temporary Protected Status or DACA Deferred Action
- you are a human trafficking victim and can show a link between the trafficking and overstay
- you are eligible for protection under Deferred Enforced Departure, UN Convention Against Torture
- you are covered under the family unity program
- you have a pending asylum application with USCIS
Consulting an experienced immigration attorney is advisable to evaluate your options after accruing unlawful presence.
What's the difference between USCIS, BCIS and INS?
The short answer is they are slightly different versions of the same organizations that have existed over time. The United States has many agencies processing and monitoring immigrants and arrivals to the US. The US Immigration and Naturalization Service (INS) oversaw US immigration between 1933 and 2003. The Bureau of Citizenship and Immigration Services, or BCIS, was a successor agency created after INS was dissolved following the 9/11 attacks. Although soon after BCIS was established, it was renamed the organization most know today, the US Citizenship and Immigrations Services (USCIS). Most non-US citizens work primarily with USCIS for their immigration matters and visas. When checking BCIS case status, students must now use the USCIS case status website since BCIS no longer exists.
Chudnovsky Law is a California based law firm practicing in the areas of immigration, business, criminal defense, family and injury law. Our firm offers a rare team of skilled multi-lingual immigration and business attorneys and top criminal defense and injury attorneys.
The intersection between immigration and criminal law is one of the most complex and technical areas of US law. Chudnovsky Law is recognized as a leader in criminal defense for clients from all countries and addressing the immigration consequences of criminal charges.
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This information does not constitute legal advice and is not a substitute for individual case consultation and research. No representations are made as to the accuracy of this information and appropriate legal counsel should be consulted before taking any actions.