A student can work with any company in the United States for up to one year in practical training if in F-1 status, and up to 18 months if in J-1 status, provided that the work is related to his or her field of study. Work authorization under a practical training program is relatively easy to obtain and can be accomplished through the guidance of the university foreign student advisor. Once practical training is authorized, the student can file an application for an employment authorization document ("EAD") with the CIS. The EAD card is about the size of a driver's license and has the applicant's photograph on it.

Practical training must be applied for within thirty days of graduation. It is not necessary to have a job at the time the permission is granted. However, since practical training is for a limited time period, it is best to schedule the starting date for a job as close as possible to the first date of the issuance of the EAD card.

Obtaining practical training before getting a job has some advantages when a student is being interviewed for a job. The student can begin to work immediately at any job within his field of study. If and when an employer likes your resume, is anxious to hire you and asks, "when can you start?", the answer can be "tomorrow morning." It is not necessary to get a preliminary clearance from the CIS or the foreign student advisor. Another advantage with practical training is that it allows the student to quickly transfer jobs if a new or better job offer comes along.

While practical training allows a student to get into the front door of the job, it is, however, important that the employer understand that while the student is able to quickly begin employment, some type of visa petition will at some time have to be filed with the CIS in order to maintain the job beyond the practical training period. When talking with employers about the job offer, make sure that the employer clearly understands that you are a foreign student. Many employers have had experiences in the past with foreign students. But many employers do not understand immigration issues and need some information before making a commitment to sponsor you for any other visa status.

In looking around for job opportunities, the student should seek out employment that is closely related to his field of study and where the job pays a respectable salary. If the salary level is very low, it may create serious problems in later changing to H-1B classification or permanent resident status.

The following are examples of where our clients have used practical training in rather unique ways:

• Alex obtained a degree in computer sciences and had difficulty in finding a good job offer in his field because of the economic situation at the time. The job market at that time was very poor. Alex took a job as a programmer analyst with a "garage shop" that was developing a software package for the travel industry. A garage shop is a small software developer that operates with little financial capital at minimum wages, often these companies operate out of the owner's garage. The pay he received was significantly under the prevailing wage and the job position could not be used to apply of an H-1B visa petition. However, because the employer was rather small Alex was given a considerable amount of freedom and responsibility. He stayed with the employer during the full practical training period of one year, but about four months before it expired he started to look for another position. His resume showed a considerable amount of experience and responsibility and he quickly found a job with a very respectable software development company at a starting salary of over $50,000 a year. We assisted Alex in getting an H-1B visa for this second job offer.
• One of our clients obtained practical training, obtained the EAD card and went to a computer recruitment show. At the show he received a job offer and started working within one week.
• One of our clients with a Masters degree in computer sciences started his own company and used the practical training to employ himself. Within six months he had developed the business to the point that it could sponsor himself for an H-1B status.

If a student wishes to remain in the United States beyond the practical training status, it is necessary to obtain another immigration status. Normally a student can apply for H-1B status. Also, the student can file for permanent residence status while in practical training, but depending on the speed in which the Department of Labor and the CIS operate, it may be necessary to later file for an H-1B visa.

H-1B status, up until November 1991, was a relatively easy application. However, in 1992, new regulations went into effect and the procedure has become more difficult. The procedure now requires a labor attestation, a numerical limit has been placed on the number of new H-1B applications that can be approved in one year (65,000 for regular H-1B filing and 20,000 more for graduates for US earned master’s degree program) and the U.S. Department of Labor is authorized to audit employers if it believes the application to be improper. If so, it may affect the employer's ability to keep or obtain new federal government contracts. A student cannot file on his own without the serious cooperation of the employer. Most employers, when they realize the complexity of the petition, will seek the help of an experienced immigration attorney.

H-1B visa status allows a professional to work in the United States. The basic requirements for this visa status are a job offer that requires at least a university degree that pays a salary that is considered the prevailing wage for the occupation and an applicant with a degree in that field. Generally, H-1B status applies to engineers, computer scientists, accountants, chemists, and other professionals. If an employer is willing to assist you for an H-1B visa, make sure that the employer is paying you at least the salary shown on the visa petition and labor attestation. It is legal to get a higher salary, but it is a fraud on the CIS to be paid a lower salary.

In order to file an H-1B visa petition and change of status, the following steps have to be taken:

• It is necessary to obtain a labor attestation from the Department of Labor. The attestation application provides some basic information about the job offer and salary. The attestation is a review by the Department of Labor to assure that the salary offered to the applicant is the prevailing wage for the occupation. Prior to filing the application, it is necessary for the employer to survey the job market to determine the prevailing wage. If such information is not available, it is possible for the employer to request a wage determination from State Workforce Agency. (Students should not conduct this survey or apply for the Labor Attestation for the employer. There are serious legal consequences if the application is not done properly. The Department of Labor may audit the employer's payroll and other accounting records.)
• Once the attestation is approved, the H-1B visa petition must be filed with the regional office of the CIS. The petition is on CIS Form I-129. Attached to the petition should be a copy of the student's diploma and transcript, a letter from the employer describing the job offer and job duties, a copy of the I-20 & the I-94, and a filing fee.
• The H-1 visa petition must be filed before the termination of the practical training status. If the practical training status has terminated, the change to H-1B status would be very difficult and it is suggested that a student should contact an experienced immigration lawyer for assistance.
• H-1B status when approved can be extended for six years, and in certain circumstances, H-1B status can be extended beyond six years.
• The U.S. immigration law changes of 1991 make it relatively easy to travel outside of the United States and apply for an H-1B visa from any U.S. Consul in order to return to the United States. A number of students have made special trips to Canada or Mexico to obtain the H-1 visa stamp in their passport in lieu of returning to their home countries to apply for visa.
• Also it is possible for a student with an H-1B visa to apply for permanent residence without threatening the validity of his or her status. However, it is important that the applicant get paid the prevailing wage or more as shown on the H-1B visa petition. If the applicant is being paid less then the prevailing wage, serious issues of visa fraud exist. It is important to further note that the employer cannot place you on the bench without pay, as this would violate the terms and conditions of your H-1B status.
• A married student who changes to H-1B status could also request that the spouse and children receive H-4 visa status. However, it is not possible for a spouse to work while in H-4 status.
• Once a student is in H-1B status, he or she must pay all State and Federal taxes. Any tax benefits the student had while in F-1 status are lost. Failure to pay taxes can create difficult problems later when applying for permanent residence.
• A number of students will obtain job offers and positions that later may become of a permanent nature. In order to keep this job, it may be necessary for the employer to sponsor you for permanent residence.
• Normally, the H-1B visa is first issued for a three year period. The employer can ask for extension for the final three year period. However, the CIS may approve a visa status for a shorter period if the job is a subcontracting position and the basic contract is for less than three years.

A student in J-1 status can have practical training status for 18 months. At the end of the practical training status, the student may be able to apply for an H-1B visa. However, this ability to apply for H-1B status depends on whether or not the student is subject to the-two-year-return-home requirement that is often attached to a J-1 visa. If the student is not subject to the two-year-return-home requirement, there is no major difficulty in changing to H-1B status. However, if the student is subject to the return home requirement, it is necessary for him or her to obtain a waiver of this requirement from the CIS before filing for the H-1B visa status.

There are four different ways for obtaining a waiver of the two-year-return-home requirement. The first is to obtain a "no objection letter" from the student's country stating that the country will not object if the two-year-return-home requirement is waived. This letter is obtained through the embassy of the student's home country in Washington DC and is sent by the embassy to the State Department. Each embassy has a designated officer that is in charge of this responsibility. The ability to obtain this "no objection letter" varies with each country. Some countries will issue the letter on request and other countries, as a matter of policy, will not issue the letter. Once the "no objection letter" is sent, the State Department will then contact the program sponsor to determine if the program sponsor has any objections to the waiver. As a general rule, the U.S. Agency for International Development, the Fulbright Commission and the National Science Foundation will advise the USIA that they will not concur with the request for the waiver.

The second basis for a waiver is a statement by an interested U.S government agency that the agency believes that it is in the public interest to waive the two-year-return-home requirement. Such a letter must be written by a high level official for a U.S. agency. It cannot be from a state or local government agency. The letter is sent by the agency to the USIA where it is reviewed and then forwarded to the CIS with a recommendation that the waiver be issued. Once the CIS receives the recommendation letter, the waiver will be issued.

The third basis for a waiver is to establish extreme hardship to a U.S. citizen spouse or child if the applicant has to return to his or her home country. This is a rather difficult waiver to obtain, but can be done when there is a serious illness with a US citizen spouse or children.

The fourth basis for a waiver is through political asylum. If a person can establish that they cannot return home because of a realistic fear of persecution, the student can file for a waiver on the basis of political asylum. This is not an application for asylum; it is only a waiver of the two-year-return-home requirement.

Generally, foreign students obtain permanent residence status through employer sponsorship. This is a complicated process involving three or more government agencies. The first step is to obtain a PERM Labor Certification from the Department of Labor. Information about PERM application process is available by visiting the Department of Labor website.

An Alien Labor Certification is only a statement by the Department of Labor that there is insufficient availability of U.S. workers for the job and that the salary is considered to be the prevailing wage for that occupation. While the certificate is not authorization for employment, it is a necessary document to file most employment based visa petitions.

The second step is to submit the Labor Certification to the CIS along with a visa petition (Form I-140) and supporting documentation to establish that the student has the minimum skills for the job and that the employer has sufficient financial ability to pay the wage

If the priority date is current at the time when the labor certification application is approved, the student may be able to apply for adjustment of status (Form I-485) to permanent residence with the CIS Regional Service Center. A student who wants to adjust status should consult with CIS about forms and procedures for an immigrant visa.

In 1991, the CIS started a program to waive Labor Certification requirements for three categories of employment based visa petitions. They are:

• Persons with internationally renowned reputations in the arts and sciences;
• Outstanding professors and research scientists; and
• When the job is in the "national interest".

Foreign students may be eligible for the second and third category, and it is possible that the overall time period for permanent residence can be six months. Completion of these petitions are rather difficult and it is recommended that students obtain the assistance of a qualified immigration attorney.

It is recommended that a student in F-1 status not travel outside the United States if it is necessary to renew the F-1 visa stamp in the passport. Students in valid H-1B status can travel outside the U.S. and should not have any problems applying for an H-1B visa from a U.S. Consul. The Immigration and Nationality Act now allows person in H-1B status to travel outside the U.S. even if the person has an immigrant visa petition pending with the CIS.

A foreign student who is married to a U.S. citizen can obtain conditional residence status by filing Form I-130 with the CIS. The permanent residence status will be valid for two years, and before it expires, the student and the spouse must file a joint petition with the CIS to revalidate the residence status. Once revalidated, the residence status is permanent. If a foreign student marries a permanent resident, the resident can petition for the student. There is a quota for this classification of immigrant visa which is backed up about five years or more. The student, during this waiting period, can apply for H-1B status.

If a student is being sponsored for an employment based petition and wants to marry a non-immigrant, they should be married before he or she applies for adjustment of status. This will allow both of them to obtain residence status at the same time.

If a student has a parent who is a citizen or permanent resident, he or she can be sponsored by the parent. At the present time, there is no quota problem for residence, if sponsored by a citizen parent and the beneficiary is unmarried. However, sponsorship by a permanent resident parent will take many years because of a serious backup in the visa quota.

Depending on the procedure being followed, the time period for obtaining permanent residence will vary because of the visa quota. These visas are then distributed to immigrants based upon a complex relationship between the country where the immigrant was born and the nature of the immigrant visa petition. At the present time, immigrant visas are issued in two different categories -- family based petitions and employment based petitions. Because of the large number of immigrants living in the United States, most of whom have filed visa petitions for relatives, the back up in the quota is very long and in some classifications it is not clear if and when the quotas will ever become current for new applicants. For example, family classification "F-2B" is for single sons and daughters of permanent residents who are over twenty one years of age. The quota is in now backed up until December, 1989. This means that applicants who filed on or before that date can now complete the visa process. However, the number of people who applied for this classification has been substantially greater than the number of applicants obtaining their residence status and as a result new applicants will experience much longer waiting periods.

An alien must be a permanent resident for five years before he can apply for citizenship. However, if the alien is married to a U.S. citizen, the residency requirement is reduced to three years. At the present time, it is taking about eight months to obtain citizenship after filing an application.

Children of foreign students born in the U.S. are U.S. citizens and can obtain a U.S. passport.

Dual citizenship is allowed but not encouraged. It is possible for a student to obtain U.S. citizenship and keep his or her old citizenship; but this depends on the law of the foreign country.

Many students are married with their families living in their home country. They are often unable to bring their families to the U.S. when they first arrived but have the intention of bringing them in at a later date. Many times, the student is not ready to call for his family until he or she has finished his degree and is working.

There are a number of ways to bring family members to the United States, both when the student is in H-1 status and when they are permanent residents.

If a student obtains permanent residence through an employment based visa petition, that student can obtain "following to join" status for his wife and children who were related to him at the time of his adjustment of status. Because of poorly written CIS instructions and regulations regarding "following to join", these visa petitions generally do not go very smoothly. Technically, the regulations require the resident alien to file CIS form I-824 with the appropriate regional adjudication center. This form, once approved, is sent to the American Consul of the student's home country. However, CIS many times does not have the information in their files to properly process the form, and the form is sent to the local district offices. Often times, the forms are lost or are sent to the wrong office, or the local district office does not have the manpower to process the application. Then again, sometimes the filing of the form will work.

There are two other ways of obtaining following to join status. One approach is to file a relative visa petition for F-2A status. This is the regular visa petition (Form I-130) with the supporting documents required in the instructions sent to the CIS. Once the petition is approved, it is sent to the National Visa Center ("NVC") operated by the Department of State. The beneficiary will receive a notification that the petition has been received and that the center will hold it until the priority date is current. Once the letter is received, the petitioner should write to the NVC and request that it reclassify the petition as a following to join visa petition. It is necessary for the beneficiary to show his or her original priority date which is on the original approval notice. The NVC will reclassify the petition and then send it to the Consul.

As a result of the changes in the Immigration and Nationality Act in 1991, it is now very easy to bring to the United States immediate relatives of H-1B visas holders. All that is necessary is to give the appropriate Consul the original I-797 approval notice of the H-1B visa that was issued by the CIS, a current letter from the employer and proof of the family relationship, such as a marriage certificate and children's birth certificates.

Due to the recent changes of the immigration law, the applicants, especially those who are out of status, must consult with an immigration attorney to ascertain their immigration liability before undertaking applications. This presentation is intended to provide general information on immigration matters that may be of relevance to foreign students graduating from American universities. For specific guidance and assistance, contact immigration counsel.