Life After Practical Training Seminar is offered on the first Monday of each month at 2:00pm. You MUST schedule an appointment.
Many students, after completing their program of study and available practical training, wish to remain in the United States to pursue or continue employment. The most widely used non-immigrant classifications for employment in the United States are H-1B (open to all foreign nationals) or TN (for Canadians or Mexicans only) status. These classifications are employer-dependent, that is, they require an offer of qualifying employment and valid status is dependent upon continued employment.
The information below is an overview of these classifications. This information is not legal advice. Each individual should carefully consider their own circumstances and consult an immigration attorney with any questions.
Who: Foreign Nationals with a bachelor’s degree or higher
Where: Obtain change of status (COS) in the US; obtain H1B visa at a US consulate abroad
When: Once employment is offered/accepted; can take 3 to 6 months to obtain approval. For private industry (Subject to the Cap), H1B start date is October 1 – filing date is on or after April 1.
How Long: Initial period of 3 years; extension for an additional 3 years (total of 6 years)
The H-1B is available to foreign nationals offered employment in a position that requires at least a Bachelor’s degree. The H1B petition is completed by the employer. The foreign national is the beneficiary of the petition. The employer and beneficiary usually work together to gather the evidence necessary to show that the position is one for which an H1B is available and that the beneficiary has the requisite education and skills for the position. H1B status is granted for an initial period of up to three years, renewable for an additional three years. The beneficiary need not have temporary intent; dual intent is recognized for individuals in H-1B status. Dependents may accompany the principal to the US, but will not be eligible for employment authorization. Obtaining approval for H-1B status can take between 3 to 6 months.
Premium Processing is an expedited handling of H-1B applications that a petitioner may request for an additional fee of $1250. The application will be adjudicated within 15 business days.
H-1B Cap: Each governmental fiscal year (October 1 – September 30), 65,000 H-1B visa numbers become available nation-wide. An additional 20,000 H1B visa numbers are available for individuals with a master’s degree or higher. Unlike the private sector, institutions of higher education, nonprofit organizations, and government research organizations are not subject to this numerical cap, and thus they are able to file for H-1B sponsorship at any time of the year. The earliest an H-1B petition may be filed is six months prior to the start date of employment.
Fees: The filing fee for an H-1B petition is currently $325. Employers are also required to pay an additional $500 “fraud prevention and detection fee” for initial H1B petitions. Private companies (with some exceptions) must also pay a training fee of $1500 ($750 for small businesses). However, institutions of higher education, affiliated non-profits, and government research organizations are exempt from the training fee.
Prevailing Wage: Employers must first satisfy Department of Labor wage standards BEFORE petitioning for H-1B status. The employer must meet or exceed the “prevailing wage” as determined by the Department of Labor for the position for which the H1B is sought.
Attorney’s fees: You should also anticipate that you may be responsible, or partially responsible, for attorney’s fees connected to the filing of the H-1B petition. This will depend on the employer, your salary and other arrangements.
Who: Citizens of Canada and Mexico
Where: Obtain TN status at the border (Mexican citizens must first obtain a TN visa from US consulate)
When: Once employment is offered/accepted.
How Long: TN status is available for up to 3 years, renewable indefinitely
TN status is only available to citizens of Canada and Mexico for particular fields or occupations found in the appendix of the North American Free Trade Agreement (NAFTA). TN status is granted for up to 3 years, but is dependent on the length of the appointment. TN may be renewed indefinitely. A TN applicant must establish that the job is one for which TN status is available, that he/she is qualified for the position and that he/she has “nonimmigrant” or temporary intent. Dependents may accompany the principal to the United States, but will not be eligible for employment authorization.
The TN is attractive because it is relatively easy to obtain. For Canadians, the application is made at the US port of entry at the Canadian border, and the status is granted or denied in an immediate adjudication by an Immigration official. No visa is required for Canadians in TN status. Mexican nationals seeking TN status are required to first apply for a TN visa at a US Consulate.
Because a TN requires proof of temporary intent, it may be difficult to file for permanent residency while in TN status.
There are other options for employment is the United States, however citizenship in a particular country is required for some. For example, citizens of Australia may be eligible for an E-3 visa, citizens of Chile and Singapore may be eligible for an H1B1. Other options include the O-1 visa (requires meeting the “person of extraordinary ability” standard) and L-1 (intracompany transferee).
There are several ways in which individuals may pursue Lawful Permanent Residency, also referred to as the “green card.” Most options involve two or more applications over a period of one to three years, with no guarantee of success. The most popular routes to permanent residency are the diversity visa lottery, family based petitions, or employment based petitions.
A common route to permanent residency in the employment context is the labor certification process for individuals in H-1B status. This process requires an employer willing to sponsor the foreign national employee and, in most cases, requires filing an application with the Department of Labor, which demonstrates that there is a position for which there is no minimally qualified United States worker available. There are some positions, such a University professors, which do not require the employer to show the unavailability of US workers. Rarely, an applicant can bypass the Department of Labor altogether (where the individual can establish extraordinary ability) and file only with the United States Citizenship and Immigration Services.
The process to obtain and change status in the United States involves a complex and constantly changing set of laws and regulations. The petitions and applications are most commonly pursued with the United States Citizenship and Immigration Services/ Department of Homeland Security, and the Department of Labor. It is important that individuals who are considering filing any documentation with respect to immigration obtain as much information as possible on the procedures and consequences of filing. It is recommended that you consult with a qualified immigration attorney prior to pursuing benefits under US immigration laws.
**The Slutzker Center is available to offer guidance and answer basic questions during your time as a student. Slutzker Center staff members are not attorneys and should not be considered your legal representative **