Path to Green Card for International Students Studying in the U.S.

Quite often, international students are not interested in returning to their home countries immediately after graduating from an American University.  The U.S. has so much to offer, and studying in the U.S. has just whet their appetites for more.  Now they want a chance to work here too.

Fortunately, the  USCIS has made obtaining a one year work permit following graduation with a bachelor degree fairly easy through the mechanism of OPT – Optional Practical Training.  This training must be related to the academic program the F-1 student has recently completed.  Although on completing a bachelor degree a student will normally be eligible for a maximum of 12 months OPT, certain science, technology, engineering and mathematics degree holders may be eligible for an additional 17 months of OPT time to add to the 12 month OPT.

Although generally valid for only one year, the OPT is a great opportunity to get to know a U.S. employer who may choose to hire the student on a regular work visa after the OPT expires.  As many students know, going into a job interview cold without knowing the employer, and then asking this organization to sponsor you for a work visa is not easy and can be discouraging.  But, if you’ve already worked for an employer for several months and they are crazy about you, they are much more likely to agree to work visa sponsorship.

Most students will want to acquire an H-1B visa after completing their OPTs.  The H-1B is the one visa designed for individuals with speciality occupations (i.e. generally requiring at least a bachelor degree) who will be hired as employees.  Students from Canada or Mexico can sometimes obtain a TN visa depending on their field of employment and Australians are eligible for E-3 visas, and occasionally an L-1 or E-2 may be appropriate, but for the most part, employees are pretty much stuck with the H-1B.

As most people know, there is a cap on the number of new H-1B visas issued each year, with few exceptions.  To give yourself the best possible chance of getting one, you are going to want to file the H-1B petition as soon as you can.  When the cap has been met for the previous year, the first day to file an H-1B petition is April 1 for employment beginning October 1 – the first day of the USCIS’s fiscal year.  So, you’re thinking, “Hmmmm.  If I finish school in May and work from June to the following June on my 12-month OPT, how I can I stay in the country until October when my H-1B would commence?

The USCIS has a solution for this.  It’s called the cap-gap.  In most cases, after receiving the H-1B approval notice, the OPT student may file to extend his/her OPT until the H-1B kicks in in October.  By doing this, the student may continue his/her employment with the OPT employer until October 1, at which time his/her status officially changes to H-1B.  The rules relating to eligibility for the cap gap are complex and this is not the place for a full explanation of them.  Suffice it to say, that this rule benefits not only the student who won’t have to return home for several months before beginning work back in the U.S. as well as the employer who in many cases won’t have to do without its employee for a month or more until the H-1B period begins.

Once the alien begins work on H-1B status, he/she can begin the green card process.  The journey from H-1B to green card is generally a lengthy one, particularly when the alien falls within the EB-3 category of visas.  For purposes of this discussion, I will only say that if the process of obtaining a green card through employer sponsorship is started within the first three to four years of being on H-1B status, it should be possible to obtain a green card without having any gaps in employment status in the U.S.