201601191010245497By: Attorneys Angela K. Ho & Nancy E. Miller

The U.S. Department of Homeland Security (DHS) has recently proposed a new rule that would allow students in F-1 status or Optional Practical Training (OPT) who have studied in science, technology, engineering or mathematics fields (STEM) to extend their OPT work authorization to 24 months. In total, this proposed rule would allow students in these STEM programs to stay and work in the U.S. for up to three years after their program ends. Students in non-STEM programs are typically granted 12 months of OPT work authorization after graduation. Students in STEM programs were originally granted an additional OPT extension of 17 months, provided they were eligible for the program extension.

The new proposed rule buys valuable time to pursue more opportunities that allow a permanent path to legal residence. For students in F-1 status or already in OPT status, it is important to know the available options for your situation and make sure you are maximizing your available time in the U.S. to set up long-term strategies. We discuss some of the greater options individuals can apply for below.

H-1B Nonimmigrant Work Visa

The new rule will have the largest direct impact on those individuals who wish to obtain an H-1B work visa and were not selected in the lottery the first or second year that they applied. The H-1B work visa is a good option for those who have at least the equivalent of a U.S. bachelor’s degree and a petitioner to sponsor them in a specialty occupation. One of the most difficult obstacles to overcome in applying for an H-1B visa is the limited quota available every year. There are 65,000 visas annually mandated by Congress, with an additional 20,000 visas set aside for individuals who have earned a master’s degree or higher at a U.S. university. If over that number apply for the H-1B visa in the first week of the fiscal year (April 1st), U.S. Citizenship and Immigration Services (USCIS), the branch of Department of Homeland Security in charge of adjudicating these petitions, will conduct a lottery to select who can apply and reject the rest of the applicants. To give an idea of the odds that H-1B hopefuls must contend with, last year over 210,000 individuals filed in the first week—a less than 50% chance of being selected. Thus, the proposed lengthier extension would enable individuals to enter the H-1B lottery multiple times, thereby increasing their odds of being selected.

To summarize, an F-1 OPT status holder in a non-STEM field would only have one chance to apply for the H-1B visa before their authorized stay ends. An eligible F-1 OPT status holder in a STEM field, however, would have the invaluable ability to apply for the H-1B visa up to three times before their authorized stay ends. It is important to note that this OPT extension is only available to students who have graduated from a STEM program and are working for an employer who is enrolled in the E-Verify program run by DHS. Once an H-1B visa is successfully obtained and maintained, pursuing a green card is the next logical step.  Please consult an experienced attorney to evaluate the best strategy for your circumstances.

EB-1 Extraordinary Ability/National Interest Waiver

The proposed extension also gives valuable time to pursue other paths to permanent residence. Individuals in highly specialized fields should consider petitioning (either with an employer or self-petitioning) for an extraordinary ability petition or national interest waiver. Individuals with high achievements or notable research publications, specialization in a narrow or pioneering field, serve as multinational managers or executives, or working on projects that further the national interest should seek an experienced attorney to properly craft a successful petition. An EB-1 petition, when successful, grants permanent residence immediately upon approval.

EB-2 Physicians in Underserved Areas and Other Options

If you are a foreign physician working in a state-mandated medically underserved area, you could also qualify for a green card through the physician national interest waiver program. The requirements vary from state to state, so consulting local counsel is recommended. Furthermore, the benefits to an extended duration in the U.S. naturally provides more opportunities for long-term solutions, whether through finding an employer willing to sponsor for permanent residence, or finding a family member to petition you.

A large part of the complexity of immigration law is finding the best available option for your circumstances and preparing for a successful outcome. While the proposed rule certainly allows more opportunities for people, it is just as important to consult with an immigration attorney early on to ensure you are not missing a potential path to a green card.

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