Please note that the best person to contact for specific questions regarding F-1s is the students International Advisor at their college or university.
An F-1 visa holder is an individual who has been issued Form I-20 by the school, college, or university as evidence that the school has admitted them for study. F-1s must establish that they can support themselves and pay for both tuition and living expenses without working illegally. F-1s must also prove nonimmigrant intent or be able to convince the consular official that they have a residence outside of the US that they have not abandoned and that they do not intend to seek permanent residence in the US. Individuals from developing countries often have the most trouble with this issue.
Note the nonimmigrant intent¡¯ issue also exists after the student has entered into the US. After a certain advanced stage in the permanent resident process, we generally advise F-1 students to apply for an H-1B, which allows you to have dual intent.¡¯ This means that you can have the intent to be a nonimmigrant (i.e. return to your home country after a temporary stay in the US), and ¡®immigrant¡¯ intent (i.e. intention to remain here permanently by immigrating through your job or through a family member).
F-1s may remain in F-1 status for as long as they maintain F-1 status. This means they must pursue a full course of study, notify the INS when changing certain educational objectives, attending the school designated on the I-20 Form, not working without authorization, and leaving the US after the completion of their studies. The I-94 (white arrival/departure card) of an F-1 visa holder will be marked D/S or Duration of Status.¡± This means that as long as they maintain their status as mentioned above, they are allowed to remain in the US. A benefit to this is not having to apply for an extension of stay as long as they continue to maintain status.
Employment
F-1 students are allowed to work in certain circumstances, as outlined below.
1.On-campus employment. This is permitted up to 20 hours a week while school is in session, and full time during vacations and holidays. On-campus employment is employment on the campus and employment normally performed by students. Students should have a valid I-20 allowing them to work up to 20 hours a week. These students are exempt from having to obtain an EAD (employment authorization document).
2.Off-campus employment. This is also referred to as Curricular Practical Training. Students can't qualify for CPT until they have been enrolled in the school for at least nine months (an exception to this is a graduate student whose studies require immediate participation). To receive permission to engage in CPT, students must have Form I-20 endorsed by their International Advisor before beginning employment. The International Advisor will mark the I-20 form as full time or part time between two specific dates. This endorsement allows the student to begin working.
Optional Practical Training, or OPT. This is off-campus employment in a field related to the studies of the F-1 student. The F-1 student is entitled to up to one year of post completion practical training. However, if they have received one year or more of full time curricular practical training (CPT), they are ineligible for OPT. OPT is granted for a maximum of 12 months and only takes place after the completion of the degree program by the student. OPT is available only once after the completion of a degree, so if a student uses it after the completion of a bachelors degree, then he/she does not get OPT after the completion of a masters degree. The International Advisor will endorse the I-20, and the student must apply for the EAD card. An F-1 student may NOT begin employment until they have received the EAD card.
The purpose of this memo is to provide an overview of the H-1B process. It is not meant to be exhaustive, nor is it meant to be construed as legal advice. As always, please consult with our office before taking any legal action.
The H-1B is a temporary employment visa. It may be issued for up to three years initially, and extensions can be obtained for a total of six years. An H-1B visa allows a person to work in a professional position for the company or business that files the application. It is only valid to work for the petitioning company. An H-1B visa may be issued for part-time employment, and an individual may have two H-1B visas to work for two companies. All of the time spent in the U.S. in H classification, regardless of employer, counts toward the six-year limit. There are certain exceptions recently enacted that allow for the extension of an H-1B beyond the six-year limit. You should speak to the attorney about this before advising anyone.
In order to obtain an H-1B visa, the job must be a professional one. The Immigration and Naturalization Service (INS) considers a job that normally requires a bachelor's degree to be a professional position. The applicant must have a degree in a field which is related to the job?a person employed as a Software Engineer, for example, must have a degree in Computer Science or a related field. In limited cases, a person without a university degree can qualify for H-1B status. Experience, training and academic work may be combined to establish the equivalent of a four-year degree.
In order to file the H-1B application, the company must have an approved Labor Condition Application (LCA). The H-1B application consists of an LCA approval notice, Form I-129, proof of the applicant's university degree (diploma and transcripts), a letter from the employer describing the job and setting out the terms of employment, a filing fee, and other supporting documents. The employer must also submit proof of ability to pay the offered wage, such as an IRS Form 941, income tax return or financial statement.
The H-1B application is filed by mail with the regional INS office. Processing times vary depending on the case load at the INS office. In some cases, the INS returns the application for more information. At present, it can take anywhere from eight to ten weeks after filing with the INS to receive approval for the H-1B visa, unless complications arise.
When the H-1B is approved and the applicant is in the U.S., he or she will receive an approval notice. This approval allows the person to remain in the U.S. in H-1B status; it does not authorize re-entry into the U.S. If and when a person travels abroad, he or she will have to obtain an H-1B visa stamp at a U.S. Consulate in order to return to the U.S., unless the traveler is a Canadian citizen. A person traveling to Mexico or Canada for less than 30 days may re-enter the U.S. without a visa stamp, using his or her valid I-94 and current approval notice.
Before applying for a visa stamp, the applicant should check with the local consulate to determine the specific requirements. Most consulates require a valid passport, the approval notice and a copy of the I-129 application. A current employment letter is also required. The applicant should take original documents, such as the diploma, to present in the event the consulate requests to review the supporting documents. Our office will provide additional information for obtaining the visa abroad. An employee who already holds an expiring H-1B visa may apply for a new visa by mail through the Department of State.
Under the 1990 Immigration Act, a person no longer must have a permanent residence abroad in order to obtain an H-1B visa. Likewise, the fact that a labor certification or application for permanent residence is pending may no longer be a reason to deny an H-1B visa. This means it is less likely the H-1B visa will be denied by a U.S. Consulate.
An employee who does not have valid practical training/employment authorization may not begin work until the H-1B has been approved. While an H-1B is employer specific under the new law, an employee on an H-1B with one company must only wait until the filing for a new H-1B before beginning work for a second employer.
If the employee will work at any additional work sites, including technical support at customer sites, let us know. Special DOL rules apply to this situation.
Since the 1990 Immigration Act, employers are liable for reasonable transportation costs back to the H-1B employee's country of last residence if the employee is dismissed from the company before the expiration of the H-1B visa. If the employee voluntarily resigns, the company is not liable for these costs. The regulations regarding transportation costs lack an enforcement provision the employee must file a complaint with the Department of Labor, and the complaint is then placed in the employer's file. The regulations do not provide any other mechanism to force an employer to pay transportation costs.
A spouse and children can apply for H-4 dependent visas by a separate application, which can be filed concurrently with the H-1B application. A spouse or child who is on a different (but valid) nonimmigrant visa may remain on such visa and change to H-4 status at a later date as well.
H-1B PROCESS
Step 1: Prevailing Wage Determination
The ESC of North Carolina will determine the prevailing wage for a specified position in the geographical area of intended employment, based on the job description and the minimum education and experience required by the employer. The employer must pay the higher of 95% of the prevailing wage or the actual wage paid to other employees at the company who perform the same work and have the same qualifications.
After approval by the company, our office will submit a request for a prevailing wage determination to the ESC. The request is based on the job description provided by the employer, including education and experience requirements. Processing times at ESC fluctuate between one and four weeks, depending on the agency¡¯s workload.
If the employee plans to file for permanent residence at a later date based on a labor certification, the minimum education and experience required for the H-1B position should generally be the same as those that will be later used in the labor certification. The special requirements can be refined for labor certification purposes.
Step 2: Labor Condition Application
Once we receive a prevailing wage determination and confirm that the employee¡¯s salary is satisfactory, we can submit the Labor Condition Application (LCA).
After review and signature by the employer, the LCA is submitted by our office to the Department of Labor (DOL). At that time, the employer is required to post notice of filing the LCA in two conspicuous places on the company premises. Our office will send the employer a copy of the LCA and a posting notice. At the time of posting, the employer must create a public inspection file which will contain: the LCA, prevailing wage determination, an actual wage memorandum explaining the methodology used to set the actual wage paid to the H-1B employee and similar employees (we will provide a sample), proof that the employee is paid the higher of the prevailing wage or the actual wage, and proof that the employee was given a copy of the approved LCA.
We will send the employer a copy of the certified LCA when DOL returns it to us. The employer must provide the employee a copy of the certified LCA on or before the date she or he begins employment in H-1B status. The employee must sign a written verification that she/he has received a copy of the certified LCA; the employer keeps this verification in the public inspection file.
Step 3: INS Application
Upon receipt of the certified LCA, we are able to submit the H-1B application to the Immigration and Naturalization Service (INS) regional service center. Processing times usually vary from eight to ten weeks, depending on the service center workload. The services own estimate is currently 60-90 days.
Upon receipt of the approval notice, we will notify the employer so that the company can change the I-9 form to reflect the employees status.
The J-1 program is used to bring a wide variety of people, including students, scholars, trainees researchers, teachers (as well as some business people, high school exchange students, college graduates, and others), through participation in a program administered through the United States Information Agency (USIA). Some J-1 visa are subject to a two year home residence requirement¡± and cannot change their status to that of a temporary worker (such as an H-1B visa holder) or US permanent resident until they have satisfied this requirement or obtained a waiver. The length of time you may spend in J-1 status varies, as there are several categories under the J-1 program. Employment authorization is granted by the J-1 program administrator, not the INS, and can be found on form IAP-66. As the J-1 program is very complex, it is best to always seek the advice of an attorney in order to advise specific people who may qualify for a J-1.
J-1 Visa Information
Q: What is the J-1 visa category, and who can use it?
A: The J-1 visa category is used by foreign students, scholars, experts, medical interns and residents, international visitors, and industrial and business trainees to enter the United States as exchange visitors¡±, in U.S. government approved Exchange Visitor Programs, for the purpose of gaining experience, studying, or doing research in their respective fields.
Q: How does one apply for a J-1 visa?
A: The U.S. Sponsor must proceed through an Exchange Visitor Program designated by the U.S. Department of State, the government agency that oversees and approves all such programs. Sponsors may:
Proceed through already established programs within their own organizations.
Bring J visa holders to the U.S. through another organizations program, provided the eligibility requirements of that organization are met.
Establish their own exchange visitor program by applying through USIA.
The Sponsor of an Exchange Visitor Program must issue a Certificate of Eligibility to each Exchange Visitor. Once this is issued, the J-1 applicant must take the certificate to a U.S. consulate to apply for issuance of the J-1 visa.
Q: What is the Duration of Stay for the J-1 visa?
A: The permissible period of stay depends on the category in which the Exchange Visitor was admitted. See below:
Students: Secondary school students may be admitted for one year. College and university students may be admitted for the duration of their program. Students in degree programs below the doctoral level may also engage in 18 months of training after completion of their degree programs. Non-degree college and university students are admissible for a two-year period.
Short-term scholars: This allows for a six-month maximum period of stay.
Trainees: Business trainees may be admitted for 18 months. Trainees in flight training programs may be admitted for 24 months.
Teachers: Primary and secondary school teachers may be admitted for 3 years.
College and university professors and research scholars: Admission in one of these categories is allowed for up to 3 years.
Specialists: Admission in this category is up to 1 year.
Foreign medical graduates: Foreign doctors participating in U.S. internships and residencies may be admitted for the length of their program, with a usual maximum of 7 years.
Summer student work/travel programs: Although a maximum is not stated, visitors usually stay for 4 months.
Au pairs: One year.
International visitors: One year.
Government visitors: 18 months.
Camp counselors: 4 months.
Q: What is the Two-Year Foreign Residence Requirement?
A: A two-year foreign residence requirement is imposed on certain categories of exchange visitors once their U.S. stay is completed. Anyone subject to this requirement is barred from a change of status, including permanent residence, until either a waiver is obtained, or the two-year requirement is satisfied. Spouses and dependents on J-2 visas are also barred from changing status until the principal applicant fulfills the two-year requirement or a waiver.
Business and industrial trainees are most often subject to the two-year requirement because their field of training and expertise appears on the Skills List maintained by the USIA. Exchange visitors may also be subject if they received funding from the U.S. or home government. This situation most often occurs with research scholars. Foreign graduates of U.S. Medical schools are also subject to this requirement.
Q: Will I be able to receive a waiver of the Two-Year Foreign Residence Requirement?
A: Waivers can be obtained in limited circumstances. In general, the following three categories of Exchange Visitors will not be eligible for waivers:
Exchange Visitors who possess skills that have been determined to be in short supply in their own countries.
Exchange Visitors whose training program is financed in whole or in part by either an agency of the U.S. government or by the government of the alien home country.
Exchange visitors who came to the U.S. to receive graduate medical education or training.
However, if you believe you are eligible for a waiver, you can pursue one of the following options:
Obtain an objection letter from your government stating that your government has no objection to you remaining in the U.S.
(unavailable to foreign graduates of U.S. medical schools).
Prove that compliance with the two-year residency requirement will result in exceptional hardship to your U.S. citizen or permanent resident spouse or child.
Prove that you will be subject to persecution upon returning home.
Obtain a waiver from an interested U.S. government agency on behalf of yourself.
Q: Can my spouse work while I am on a J-1?
A: Family members may enter on a J-2 visa, which does allow for employment (with authorization from the INS in the form of an EAD), but only if the compensation received will be to support themselves, and not the principal alien. If the spouse can qualify for another nonimmigrant visa which allows for employment (H-1B, L-1), then he/she may apply.
The R-1 Visa enables religious workers to temporarily enter the United States. A religious vocation is defined as a calling to religious life, shown by a demonstration of a lifelong commitment; for instance, taking vows. Nuns, monks, and religious brothers and sisters are examples of religious workers.
A religious occupation is defined as a continual engagement in an activity related to a traditional religious function. This definition includes liturgical workers, religious instructors or cantors, catechists, workers in religious hospitals, missionaries, religious translators and religious broadcasters. However, it doesn't include janitors, maintenance workers, clerks, fund raisers or solicitors of donations.
Your spouse and/or unmarried children under 21 years of age may be granted derivative status to enter the U.S. They are not authorized to work while in the U.S., but may attend school.
Steps
You should apply for an R-1 Visa at the U.S. Embassy or Consulate with jurisdiction over your place of permanent residence. While you may apply at any U.S. consular office abroad, this method is more difficult. You do not have to maintain a residence abroad which you have no intention of abandoning, but must intend to leave the U.S. at the end of your R-1l status.
Documents
The following documents are required for the R-1 Visa:
1. A filled-in visa application Form OF-156.
2. One recent photograph 1 & 1/2 inches square (37mm x 37mm) of each applicant, with the entire face visible. The picture should be taken before a light background and without head covering.
3. A passport, valid for travel to the United States for at least six months longer than your intended visit.
You will also need to provide the following documents:
1. Proof of tax-exempt status or eligibility for tax-exempt status.
2. A letter from an authorized official of employing organization certifying your position in your organization, and the nature of the organization.
Please note that the information provided below is general information, and should not be used for specific cases. It should be used to gain a general understanding of the terminology and concepts behind certain visas. If you have questions about a specific case, please contact our office at the above number.
The following are examples of dependent visa holder classifications:
H-4s- these are dependents of H-1B visa holders.
F-2s- these are dependents of F-1 visa holders.
TDs- these are dependents of TN-1 permit holders.
L2s- dependents of L-1A or L-1B visa holders.
J2s- dependents of J-1 visa holders (J-2s are an exception in that they do allow work authorization)
Visitors to the US. Certain countries have agreements with the US that allow their citizens to travel in the US for up to 90 days without obtaining a visa. This is called the Visa Waiver Program. If a person enters under this program, they cannot change to another nonimmigrant status in the US. Of course, they absolutely cannot work while here. B-1 visas are for individuals coming to the US for business purposes, such as attending conferences, providing services for a foreign country, attending meetings. Work is forbidden in the sense that it cannot be work normally performed on a day to day basis within the company. In order to obtain permission/authorization to work for a US company, the individual should apply to the INS to change their status to that of another nonimmigrant status which affords them the right to work. Please note that B-1 visa holders are heavily scrutinized by the INS if they are petitioning to change their status while in the US. B-2 visas are for individuals coming to the US for vacation. These visas are commonly used by citizens of countries that do not qualify under the Visa Waiver Program. Work in this category is forbidden
L-1 Intracompany Transferee. Certain companies which meet the INS definition of a parent, branch, subsidiary or affiliate qualify to petition for an L-1 intracompany transferee visa. Please keep in mind this information is very general, and specific questions should be directed to our office.
There are two types of L-1 Intracompany Transferees:
1. L-1A. This is for qualified employees who are considered managers or executives. L-1A visa holders may remain in the US for up to seven years.
2. L-1B. This is for qualified employees who are classified in the specialized knowledge category. L-1B visa holders may remain in the US for up to five years.
Employment is granted by the INS in the form of an approval notice to an application that has previously been submitted.
O-1 Visas. The O visa category includes individuals of extraordinary ability in the arts, sciences, education business or athletics, as demonstrated by sustained national or international acclaim, or with regard to motion pictures and television production, a demonstrated record of extraordinary achievements recognized in the field through documentation. The main advantage to the O-1 visa is that there is no numerical cap nor is there a 6 year limitation on the length of stay. However, the process is much, much more labor intensive. These applications are submitted to the INS for approval before the individual can begin working.
P Visas. The P visas category allows an individual to enter the US to perform as an athlete at an internationally recognized level of performance of part of an entertainment group that has been recognized as outstanding in the field. There are also provisions for performances in exchange programs and unique cultural programs. Admission periods can be up to five years. These applications are submitted to the INS for approval before an individual can begin working or performing.
E-1 Treaty Trader and E-2 Treaty Investor. E visa status is based on treaties between the US and the person country of nationality. E-1 Treaty Trader status is based on a treaty of trade and commerce between the US and another country. E-2 Investor status is based on an investment by one or more foreign nationals. E visas may be approved by the Department of State, which includes US consulates and embassies abroad. Please contact our office for more information related to the E visas.
H-3. This status is for an alien in a training program not available in the alien¡¯s home country. There is a two year time limitation on H-3 status. There are very strict requirements as to the proof of the nature of the training program, and the trainer must establish that the trainee will not be displacing a US worker. The trainer must also establish that any productive work performed by the trainee is secondary to the training process.
Links. Following are a couple of websites that are helpful in the further understanding of the different types of visas available: