A Roadmap for F-1 Students to become Green Card Holders
The United States of America has long been heralded as the “land of immigrants”, a land that promises opportunities and freedoms to people who are looking for that opportunity and freedom from all over the world. But it isn’t simply the immigrants who have been the key to America’s success and entrepreneurial spirit; the non-immigrant, too, has provided invaluable support and impetus to the dynamism that is America. In recognition of that contribution that the legal non-immigrant can provide, the United States provides unparalleled opportunities to foreign nationals to come and be a part of what’s happening in America. From those who would come as students to those who would come as workers, non-immigrants visas can open the door to opportunity. But how can a person from another country take advantage of these opportunities? What if that person hopes to become a permanent resident one day to realize his or her part of the American dream? The ilexlaw pllc will try to answer that questions, beginning with a common path for foreign nationals to become U.S. Lawful Permanent Residents: the F-1 Student visa.
Part 1: The F-1 Student Visa
Two student visa categories exist for people who want to study in the United States: the F-1 visa and the M-1 visa. The F-1 visa is for students pursuing higher education academic studies at a college, university, or language school; the M-1 visa is for non-academicor vocational studies. The F-1 visa option for post-secondary students (after high school) will be considered.
The first step in coming to the United States to begin or continue higher education is to select which colleges, universities and/or language schools that the prospective student is interested in attending. In addition to considering which institution will best meet their academic and other needs, foreign students must also ensure that the schools chosen are SEVP (Student and Exchange Visitor Program) certified. This information is often found on a school’s website or a prospective student can speak with an admission counselor at the school. Next, the student will apply to any qualifying schools.
Once the student has been accepted for admission to a SEVP certified college, university, or language school, the school’s DSO (Designated School Official) will then enter the student’s information into the SEVIS (Student and Exchange Visitors Information System)database and issue a signed I-20 (Certificate of Eligibility for Nonimmigrant Student Status for Academic and Language Schools) to the student. This document certifies that the student has been admitted to a full-time course of study at a SEVP approved school and that the student has shown evidence of sufficient financial resources to stay in the United States. The I-20 is often called a “certificate of eligibility” because it allows the student to apply for the F-1 visa. A prospective student should be issues an I-20 by any school that he or she is accepted to but the student must decide which school he or she will attend prior to completing the next steps in the process. The student will also have to pay a fee to SEVIS and will receive an I-901.
Once the student has received an I-20 from the SEVP approved school and paid the SEVIS fees, the student then schedules an appointment at a US Embassy or Consulate for an initial entry visa interview. This visa interview is required of all visa applicant’s between the ages of 14 and 79. At the visa interview, the student will need the following documents:
Form I-20 signed by the student and the school’s DSO
SEVIS I-901 receipt
MRV (Machine Readable Visa) fee receipt (shows payment of the visa application fee)
One 2”x2” photograph that meets Non-immigrant Visa photo requirements (i.e. a passport style photograph)
Signed passport (this passport must be valid for at least six months after entry into the US)
Description of the student’s intended program of study
Scores from standardized tests required by the school (TOEFL, SAT, ACT, GRE, etc.)
Diplomas or Transcripts from current or previous schools
Housing information (showing where the applicant will reside during his or her study)
Evidence of the financial resources needed to cover tuition and living expenses for at least one year of study (i.e. tax documents, bank statements, etc)
Any additional forms as requested by the US Embassy or Consulate
During the visa interview, the embassy or consulate official will ask the student questions to ensure that he or she meets the very specific student visa requirements mandated by the US Immigration and National Act. In order to determine this, the official may ask questions in order to confirm that the applicant has (1) a residence in the country of origin (2) with no immediate intention of abandoning that residence and (3) that the applicant intends to depart the US upon completion of the course of study. Questions related to the needed financial resources and other questions may be asked as well. The questions asked during the visa interview and the ultimate approval of the F-1 visa are totally within the discretion of the embassy or consulate official conducting the interview.
Prior to scheduling the visa interview for the F-1 visa at the embassy or consulate, a student must plan to allow adequate time for visa processing. In order to determine the typical wait time between the initial request for an interview and the actual interview, it is advisable to check the website of the embassy or consulate at which the interview will occur. Embassies and consulates are only able to issue student visas 120 days or less before the school’s registration date for the course of study as specified on the I-20. If the student applies more than 120 days in advance, the embassy or consulate will simply hold the application until it is able to issue the visa.
Once granted an F-1 visa at the embassy or consulate, the student should notify the school of the intended date of arrival in the US and confirm housing and travel plans. According to the Department of Homeland Security’s requirements, all beginning F-1 students may only enter the United States 30 days or less before the course of study start date as shown on the I-20.
When arriving at the US port of entry (most likely an airport) to begin his or her studies, the foreign national student will be required to present to a Customs and Border Protection official:
- Form I-20 signed by the student and the school’s DSO
A valid passport that is good for at least six months from the date of the beginning of the course of study
A valid visa that contains the student’s SEVIS identification number and the name of the school of study
Form I-94 (Arrival-Departu
If granted entry, the Customs and Border official will stamp Form I-20 and Form I-94. These forms should be kept by the student during the entire course of study. The student must then report to the school that issued the I-20 and enroll as a full-time student in the school’s course of study within 30 days of arriving in the United States.
Once admitted to the US for study on an F-1 visa, the foreign national student is allowed to remain in the US so long as his or her full-time student status is maintained. Even if the F-1 visa in the passport passes its expiration date, the student will still have legal status in the US so long as the student is pursuing full-time studies at a SEVP certified school and is remaining in the United States. However, if the student leaves the US after the expiration of the F-1 visa expiration date in the passport, the student will need to obtain a new visa at an embassy or consulate before he or she will be permitted to reenter the United States and continue his or her studies.
Different Options to Work While an F-1 Student
F-1 students in the United States who wish to work have several options:
F-1 students may work on-campus at their college, university or language school for up to 20 hours per week while taking classes and more than 20 hours per week during academic breaks.
“On-campus employment” is defined as:
- Any work for which the student is directly compensated by the school
- Work for an outside employer so long as the work place is at the school and provides direct services to students (i.e. food services provided at the school through a third-party company)
- Work at an off-campus location that is affiliated with the school and a key part of the student’s field of study
No additional authorization from USCIS (United States Citizenship and Immigration Service) is needed for on-campus employment so long as the student is in good academic standing and has valid F-1 visa status.
F-1 students may work off-campus after completing one academic year as a full-time student and after receiving special authorization from the USCIS in one of the following categories:
OPT (Optional Practical Training)
Though most students choose to use OPT after completing their studies, it is possible to work under OPT while still a student. The total time worked cannot exceed 12 months during the full course of studies, and any time worked under OPT while a student will count against the OPT option after graduation. Additionally, any work must be related to the student’s field of study. In order to apply for OPT, a recommendation from the school’s international student office is required and Form I-765 (Application for Employment Authorization) must be filed with the USCIS. See below for more information on OPT following the completion of the course of study.
(B) CPT (Curricular Practical Training)
CPT is defined by the Department of Homeland Security (DHS) as “alternative work/study, internship, cooperative education, or any other type of required internship or practicum which is offered by sponsoring employers through cooperative programs with the school.” CPT may be part-time or full-time and does not count against the 12 months of OPT unless the student works 12 months or more of full-time CPT. In that event, the student would NOT be eligible for any OPT after completion of studies. In order to work under CPT, a new I-20 authorizing the CPT must be filed by the college or university’s international students office.
(C) International Organization Employment.
F-1 students may receive authorization to work for a recognized international organization, such as the United Nations or the World Bank. A new 1-20 must be issued by the university or college and an EAD (Employment Authorization Document) must be granted by the USCIS. To receive the EAD, Form I-765 (Application for Employment Authorization) must be submitted, with approval taking up to 90 days. The student may not begin work prior to the filing of a new I-20 and the receipt of the EAD.
(D) Economic Hardship Employment.
F-1 students may be granted permission to work off-campus if they are suffering a severe economic hardship that is substantial and beyond their control. In addition to these two conditions, it must also be shown that on-campus employment is either unavailable or insufficient to meet the financial needs of the student. To request an EAD based on Economic Hardship, Form I-765 must be submitted, with all required supporting documentation. Approval may take up to 90 days and work cannot begin prior to the grating of an EAD.
Part 2: Work Visas After F-1 Status
Once a student has graduated or is approaching graduation, OPT (Optional Practical Training) is often the next step toward the ultimate goal of a Green Card. The intended purpose of the OPT is to allow the student to apply the theoretical knowledge gained from his or her academic program in a real-world work experience. As a result, any OPT employment must be directly related to the student’s major field of study, must be endorsed by OISS (Office of International Students and Scholars), and must be approved by the USCIS. Also, the OPT employment must be for a minimum of 20 hours per week and may be for as much as 40 or more hours per week. The total time allowed for OPT (whether OPT was taken while a student or after graduation) is 12 months and any time spent doing OPT prior to graduation will count against the 12 months (see above). However, STEM students (Science, Technology, Engineering, and Mathematics) may receive an extension of 17 months, resulting in a total OPT of 29 months.
It is important to keep in mind that the actual employment cannot begin until USCIS approval, a process that can take up to 90 days after filing. Since an F-1 student is required to leave the United States within 60 days after the completion of his academic program, request for the OPT needs to be made in a timely fashion. A graduating student may file for OPT up to 90 days before graduation, but no later than 60 days after graduation. Applications for OPT may be filed even without a job offer, but it is necessary that any OPT employment the student secures be directly related to the applicant’s field of study.
In order to receive the F-1 OPT, the student must:
Complete and submit an OPT application to the DSO so that a new I-20 with an OPT recommendation can be issued
Complete Form I-765 (Application for Employment Authorization)
Submit the new I-20 with the OPT recommendation and Form I-765 and photocopies of all required supporting documents to the USCIS within 30 days of the issue date of the new OPT I-20.
LATE APPLICATIONS WILL BE DENIED BY THE USCIS
Once the 12-month OPT limit has been reached (or 29-month limit for STEM students with extension), the F-1 visa holder may no longer remain in the United States without a change of status. For those students wishing to remain, obtaining an H-1B visa is typically the next step though other options may be available for certain specialty workers.
The H-1B visa gives temporary worker status to a foreign national in the United States for a maximum period of three years, which can be extended for an additional three years for a possible total of six years.
In order to change status from F-1 to H-1B, the F-1 student visa holder must find an H-1B sponsor company that will provide an appropriate H-1B temporary worker position. Theoretically, a graduating F-1 student could change status to H-1B directly after completion of the student’s field of study, but practically speaking, most F-1 students choose OPT as an interim step toward the H-1B. Often the company that provided the student with OPT will also be the sponsoring company for the H-1B or will provide the real-world work experience that will enable the F-1 student to find another H-1B sponsor company.
The following are necessary requirements in order for an H-1B petition to be approved:
The employer must show the need for a specialty occupation worker within the student’s field of study who has at least a four-year college or university degree or its equivalent. (In lieu of a four-year degree, three years of experience is equal to one year of education.)
The employer must show that the specialty occupation worker will be paid at least 95% of the prevailing wage for that occupation in that geographic location.
The employer must show that the H-1B applicant is qualified to fill the needed specialty occupation position
The employer must file an LCA(Labor Condition Application) with the Department of Labor and post a notice of H-1B filing for ten days at each job-site where the foreign national will work.
H1-B petitions must be filed by the employer and may be filed up to six months before the beginning date of employment. It is important for both students and employers to note that there are only 65,000 H-1B visas available each fiscal year with an additional 20,000 visas set aside for students with U.S. master’s degrees or higher. For the past few years, USCIS has received over 200,000 H-1B visa applications on the first day of filing (April 1) for the combined 85,000 visas available and has therefore had to utilize a lottery system to determine which petitions to process. However, certain positions are exempt from the visa cap, such as positions within an institution of higher education or a non-profit affiliated with that institution and non-profit or government research positions. In addition, citizens of Chile, Signapore, and Australia may have visas available to them separate from the general cap.
Often after the filing of an H-1B petition by the employer, the USCIS will ask for additional evidence. These RFEs (Requests for Evidence) usually ask for a detailed description of the work to be done by the foreign national, the qualifications of other employees in the company who do similar work, and an explanation as to why the particular services provided by the foreign national require a college degree or its equivalent.
Once the employer has satisfactorily answered the issues raised by the RFEs, the H-1B is granted. The H-1B allows the foreign national to work only for the position specified on the H-1B petition, which means that in order to change employers, the new employer must file a new H-1B petition and have received an official receipt from the USCIS before the foreign national ends employment with the original H-1B sponsor employer. If the H-1B foreign national ends his employment with his original H-1B sponsor before a new H-1B petition has been filed and the new employer has in hand an official receipt of that petition, the foreign worker will lose H-1B status and must return to his country of origin. It is important for any H-1B
Part 3: The Green Card
A “green card holder” is a common term to refer to a person who is a lawful permanent resident of the United States. The Green Card gives a foreign national permanent resident status in the United States, which means that the Green Card holder is authorized to live and work in the United States on a permanent basis. The Green Card is a physical card, resembling a driver’s license and no longer green in color, that is given to the person who has been granted permanent resident status as proof of that status.
Multiple avenues exist for the acquisition of a Green Card, but most foreign nationals receive a green card either via family sponsorship of a qualifying family member who is a U.S. citizen or permanent resident OR though sponsorship by an employer.
The first step to getting a Green Card through an employer is to receive an offer of permanent employment in the United States from that employer. Many employers of H-1B visas may also be able to later file for a Green Card for the same employee. Next, the employer files an application for Permanent Labor Certification with the Department of Labor’s Employment and Training Administration (ETA) through a complex process known as PERM. The purpose of this certification is to prove that there are no qualified US workers for the position being offered the foreign national and that the permanent admission of a foreign worker will not negatively impact the job prospects, wages, or working conditions of US workers in the area of intended employment.
The date the labor certification application (Form ETA-750) is received by the Department of Labor (the filing date) becomes the priority date used by the USCIS and the Department of State. Since Green Card processing through Labor Certification can take up to a few years to process, application for Labor Certification should be made as soon as possible following the employer’s job offer.
Once the PLC (Permanent Labor Certification) has been approved by the Department of Labor, the certification is submitted by the employer, along with Form I-140 (Immigrant Petition for Alien Worker) to the USCIS. The PLC is only valid for 180 days after it is granted and will expire if not submitted to USCIS during this 180-day window. The foreign national’s spouse and children may also be included in the Immigration Petition for Alien Worker, and processing of the I-140 generally takes anywhere from three to eight months.
If the I-140 is approved by the USCIS and the foreign national has receive an immigrant visa number, the foreign national then submits Form I-485 (Adjustment of Status) for himself and each family member. The foreign national may also apply for Adjustment of Status by filing Form I-485 at the same time the employer files Form I-140 IF the applicant has an immigration visa number at the time of filing. Please note that the I-485 applications are subject to an annual quota, so the I-485 may be filed only after the cut-off dates published monthly by the Department of State pass the priority date of the initial immigration petition. These quotas are especially important for foreign nationals from China, India, Mexico, and the Philippines as they may have a delay of several months to several years before an immigrant visa may available to them.
The following forms are filed with the USCIS in order to adjust status:
Form I-485 (Application to Register Permanent Resident)
Form G-325A (Biographic Information)
Form I-693 (Medical Exam Results)
Form I-765 (Permission for Work Authorization)
All needed supporting documents
After filing with the USCIS, an appointment will be scheduled for finger-printing and biometrics at the nearest Application Support Center. Once the finger-printing and biometrics have been taken, the applicant will be given a FD-258 card. An interview may also be scheduled with the I-485 applicant to verify documents and clarify any changes or corrections or provide additional documentation, but usually the interview is waived.
Once the I-485 has been approved, the successful applicant will receive an approval letter from the USCIS. This letter should be taken to the nearest USCIS service center along with the passport and all I-94 and EAD cards. A temporary Green Card stamp (I-551) will be placed on the passport, which will serve as proof for all of the benefits of permanent residency. Within six months of the I-485 approval, the Green Card will be mailed.