Nonimmigrant Visas

A foreign national may be hired by a U.S. employer to work temporarily in the U.S. In most cases, the employer files a Form I-129, Petition for a Nonimmigrant Worker, directly with U.S. Citizenship and Immigration Services (USCIS). The visa is employer-specific and, thus, is dependent upon ongoing employment with the petitioning company.

Employment-based nonimmigrant visas fall into several categories, including:

  • E-1 and E-2 visas for investors and traders
  • H-1B visas for professionals
  • H-2B temporary work visas
  • L-1 visas for intracompany transferees and entrepreneurs opening U.S.-based operations
  • P and O visas for athletes, artists and entertainers
  • R-1 religious worker visas
  • TN visas for professionals from Canada and Mexico

Student Visas

The exchange visitor J visa is in a category generally for professors, trainees, interns and even summer students in a travel/work program. Certain exchange visitors are required to return to their home countries upon completion of their U.S. training before they may apply for an immigrant visa or status change. This requirement may be waived only in limited situations.

The F visa is for academic students who seek to enter the U.S. only for the purpose of attending a course of study. The school has to be approved by U.S. Immigration and Customs Enforcement (ICE) to be in compliance with the Student and Exchange Visitor (SEVIS) Program. The J visa is an exchange visitor visa used by academics and students.

Choosing A School

When selecting a school:

  • Interview admissions counselors and current or past students at the prospective school.
  • Determine whether the coursework will be beneficial for educational purposes or to qualify for a work visa (H1, H2, nurse, labor cert, etc.).
  • Find out the school policy on providing Social Security numbers and on- and off-campus employment.
  • Keep in mind that schools that have very lax policies might be audited and shut down, putting your F status in jeopardy.

On-Campus Employment

During the student’s first academic year, the only employment that may be accepted is on-campus employment. At most schools, on-campus employment opportunities are rather limited. Prospective students should check with the school for specifics. It may be that most of the on-campus jobs are reserved for those U.S. students who are participating in certain types of financial aid programs, so there may not be anything available for foreign or other students. Policies vary from school to school.

General Off-Campus Employment

Off-campus employment requires a full-time student to have completed at least one academic year of study before being eligible to apply. A student who is on an academic student visa (F-1) may obtain permission to work in four circumstances:

  • Curricular practical training
  • Optional practical training
  • Unforeseen economic hardship
  • Internship with an international organization

Students wishing to obtain either curricular or optional practical training must obtain employment that is related to the student’s course of study, and the position must be explicitly for the purpose of practical training. This training cannot include English-language training.

As indicated above, the two types of practical training are curricular practical training and optional practical training.

Curricular Practical Training

Curricular practical training (CPT) refers to programs that are a fundamental or an integral part of the existing curriculum. The training must be alternate work-study (alternating between classes and working), an internship, a cooperative education or any other type of required internship or practicum that is offered by a sponsoring employer through an agreement with the school.

Students enrolled in a college, university, conservatory or seminary are eligible to apply to the designated school official (DSO), often referred to as the international student adviser, for authorization to participate in a curricular practical training program. In order to qualify for CPT, the proposed CPT must be listed in the school’s course catalogue, with the number of credits awarded on completion, along with information about faculty supervision and a description of the course featuring a clear definition of the course objectives.

CPT can last as long as required or justified by the program. Students who have completed more than one year of full-time CPT, however, are ineligible to participate in post-completion optional practical training.

Please note that, for graduate students, some CPT programs may be authorized even during the first academic year. The DSO would be able to tell you what types of programs are available.

Troubleshooting

Reasons for interruption in schooling include:

  • Health or pregnancy
  • Travel or failed application for change of status
  • No excuse for lack of attendance unless there is an official break in a semester
  • Reinstatement after a break in schooling
  • “No-fault break,” “out of control of student” or lack of funds, including abandonment by sponsor

Optional Practical Training

  • Optional Practical Training (OPT) defined:
    • OPT provides the privilege to work in an occupation that is directly related to the student’s major area of study.
    • Students in English language, elementary or secondary programs are ineligible for OPT.
    • It is a status that is not separate from F-1 student status but is pursuant to it. A student still needs a valid I-20 from the school and must apply separately for an Employment Authorization Document (EAD) from USCIS.
    • Students must be full-time students for at least one academic year, which is normally eight to nine consecutive months
    • One certificate program is enough for OPT – here, it’s six to nine months.
  • Time when student is eligible for OPT:
    • When the school is not in session, if the student is currently enrolled and intends to register for the next term or session
    • While school is in session, provided that practical training does not exceed 20 hours a week
    • After completion of all requirements for the degree (excluding thesis, if applicable)
    • After completion of the course of study
    • OPT is available for a total of 12 months of full-time employment. Any period or increment of OPT will count toward the total 12 months. For example, part-time practical training for 20 hours per week for a six-month period will be counted toward the 12 months allowed at a rate of half the time. This means that three of the total 12 months allowed will have been used up (six months of employment at half-time employment equals three months of full-time employment).
    • All practical training must be completed within 14 months after the completion of study.
  • Under what circumstances can you obtain OPT for a second 12 months?
    • After completion of another level of education in the same field (for example, complete bachelor’s and go to master’s program)
    • After switching to a different program (for example, if you started out in office technology and switched to pharmacy)
  • Documentary requirements:
    • Even with approval from the DSO, a student must obtain separate work authorization from USCIS.
    • A student cannot begin work until they have a valid EAD, which can take up to three months
    • Transcript, original I-20 for self and dependents
    • Form I-765 filing fee
  • Timely filing:
    • Post-completion OPT is for full-time employment only and must be applied for within 90 days before completion of the course requirements. The application must be received before the last day of school.
    • Remember, you are asking USCIS for a benefit, so the burden is on you to comply with documentary requirements.
  • Miscellaneous:
    • Transfer to another school automatically terminates authorization of practical training employment.
    • Unused practical training time cannot be reserved for a later time.
    • Severe economic hardship: After the first academic year, if a student can demonstrate that a “severe economic hardship” was caused by unforeseen circumstances beyond their control, it may be possible to obtain work authorization. To qualify for off-campus work, the student must pursue a full course of study (12 credit hours) and be in good standing with the college or university. During the semester, they are permitted to work up to 20 hours per week. During the summer and holidays, the student may pursue full-time, temporary employment. Severe economic hardship is decided on a case-by-case basis. The more documentation that can be provided, the better. An example of severe economic hardship is if the financial support program that is sponsoring the student becomes defunct or the family member that has provided the financial backing is no longer able to provide the support offered.
    • File taxes
    • Once the DOL approves the ETA Form 9089, the employer files an immigrant visa petition on Form I-140 on behalf of the foreign national with USCIS. This alone does not grant any status to the foreign national. Only when USCIS approves the I-140 petition and the priority date of the petition is current can the foreign national apply for an immigrant visa at a consulate abroad or for AOS in the U.S.