For international students seeking on-the-job training opportunities, the U.S. has established work authorization options. The two options processed by the United States Citizenship and Immigration Services (USCIS) are Occupational Practical Training (OPT) and OPT extensions for students majoring in Science, Technology, Engineering, or Mathematics. Curricular Practical Training (CPT) is an option as well but the student's respective school processes and approves CPT applications). International students are entitled to one year of OPT work authorization. The aforementioned extension provides two more years if a student's employer fulfils other criteria such as establishing a structured training program and signing off on student self-evaluations. Once a student's Post-Completion OPT or STEM OPT expires, the U.S. employer may wish to retain the foreign national employee given the likely time and money spent on training.
An experienced immigration attorney can help an employer to understand each of the available options. For instance, the employer may be able to register the employee for the annual H-1B visa cap lottery. An H-1B visa allows someone to provide services within a specialty occupation for an initial period of up to three years. A position is regarded as a specialty occupation if it involves specialized knowledge and requires the attainment of a bachelor's degree or higher (or its equivalent).To be eligible, the applicant's academic background must relate to the position's job responsibilities; work experience can be factored in order to achieve a desired academic equivalency.
In addition, three-year extensions are available for an accumulative validity period of up to six years.H-1B visas have a 'dual intent' component. This allows an H-1B visa holder to pursue permanent resident status simultaneously (i.e., apply for a Green Card).In order to obtain an H-1B visa, an applicant needs to be selected in the annual H-1B visa cap lottery and, subsequently, an H-1B petition needs to be approved by USCIS. This lottery selection process exists because there is a cap on the number of issued H-1B visas each fiscal year. Altogether, the H-1B visa cap is 85,000 divided into two categories. The USCIS provides 65,000 available H-1B visas for eligible beneficiaries. There are an additional 20,000 visas for eligible foreign nationals who have earned a master's degree from a qualifying U.S. academic institution and thus have a higher likelihood of being selected during the lottery.
In 2020, the USCIS launched a registration system to better manage the H-1B visa cap. Under this system, the U.S. employer must register a particular foreign national beneficiary with the USCIS for purposes of the lottery selection. Since 2020, the registration process has occurred near the beginning of March. If the beneficiary is selected during the lottery, the U.S. employer has the opportunity to file an H-1B visa petition on his or her behalf. If the H-1B petition is approved by the USCIS, the earliest that the beneficiary can work in H-1B status is October 1st. Consequently, there may be a gap between the time that Post-Completion OPT/STEM OPT expires (or when the F-1 grace period expires) and the first of October. In such instances, and if the student has a pending or an approved H-1B petition before the end of OPT authorization, the H-1B Cap-Gap Extension rule extends an eligible student's OPT authorization during the "gap" period until H-1B status begins.
Besides H-1B visas, TN visas may also be a viable option. Formerly known as the North American Free Trade Agreement (NAFTA), the U.S.-Mexico-Canada (USMCA) agreement created temporary work visas for citizens of the U.S., Mexico, and Canada.In addition to having the requisite credentials for the U.S. job, a successful applicant must be qualified under one of the listed profession categories. Unlike the H-1B visa, the TN visa does not have 'dual intent' (a TN visa holder cannot simultaneously apply for a Green Card). The maximum length of stay on a TN visa is three years although it can be renewed indefinitely if the temporary nature remains evident. There is no yearly cap on issued TN visas.
Other visa options may be available. For instance, the foreign national may return to school to pursue an advanced degree (Master's or Ph.D.). If this occurs, eligibility for CPT and OPT renews once the advanced degree program begins.Also, the foreign national could obtain work authorization if he or she has a spouse who has a particular independent non-immigrant status in the U.S. Moreover, the foreign national may qualify for a Green Card depending upon family member sponsorship, or if they qualify for an EB-1 (aliens with extraordinary ability, outstanding researchers, or a multinational executives/managers), EB-2 (advanced degree/exceptional ability and, possibly, eligible for a National Interest Waiver), or EB-3 (skilled, professional, or "unskilled" workers). In light of this, both potential U.S. employers and foreign nationals need to consult with an experienced immigration attorney to determine which visa programs make the most sense.
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