Immigration: International Students & Post-Graduation Options

by Jeanny Tsoi on Jan. 15, 2020

Immigration 

Summary: Immigration: International Students & Post-Graduation Options

Talent transcends borders. It permeates through all obstacles because there is a global demand for skilled labor. The United States is no exception. American corporations need access to the best minds to remain competitive. That is why the United States allows international students with college degrees to remain here after graduation. America is not interested in watching talent leave its shores it wants to keep it for itself.

But having a college degree does not guarantee that international students will be allowed to stay. While our country is interested in maintaining its competitive edge in the global market, it has no intention of displacing American workers. International students must prove their skills are needed. There are several avenues for satisfying this requirement.

International students with advanced degrees, e.g., master’s, doctorate, etc., are eligible for an employment-based green card in the second preference category, also known as EB-2. 8 CFR §204.5(k). However, to qualify, the international students must have a job offer, accompanied by a labor certification from the U.S. Department of Labor (“DOL”). Satisfying both requirements is not easy.

Finding a job is a daunting task for any student or new graduate. This task is made more difficult by default of not being a U.S. citizen or legal permanent resident. That is why international students need to formulate relationships with employers before graduation. The best way to showcase skills to future employers is by working for them.

As student visa recipients, international students are eligible to work off-campus to gain practical training in their field of study. 8 C.F.R. §214.2(f)(10). This provides them with the opportunity to demonstrate their talents and abilities to their employers. Please note that international students are generally limited to 12 months of practical training. However, those who have a degree in science, technology, engineering or mathematics (“STEM”) may be eligible for a 24-month extension (beyond the initial 12-month period). This time should be used to work for employers that are poised to hire international students after graduation.

Receiving a job offer is a great start, but not enough to get a green card. The employer must apply for a labor certification from DOL. To obtain such certification, the employer must submit documentation that describes the position offered and efforts made to hire a U.S. worker. In reviewing the application, DOL will consider whether the position could be filled by an American worker and whether hiring an immigrant worker would impact wages and job conditions of similarly situated employees in the United States. INA §212(a)(5). If DOL issues the certification, the employer has 180 days to file an I-140 petition with the U.S. Citizenship and Immigration Services (“USCIS”) to obtain an international student’s work visa.

The problem is there are a limited number of EB-2 visas available. Without a visa, international students would not be able to apply for a green card. Presently, only 140,000 EB visas are being issued annually. INA §201(d)(1). Among that, only 28.6% are allocated to the EB-2 category. This number may be further restricted for international students whose country has reached its maximum allowance of visas. INA §202(a)(2). China and India are examples of such country. Fortunately, EB-2 visas are readily available for international students from other countries, such as Mexico and Philippines (as of now).

If visas are not readily available, the international students must leave, unless, they are able to maintain their immigration status by other means. For example, international students who have a STEM degree may extend their stay for another 24 months (see above).

Alternatively, international students with advanced degrees may apply for an H-1B visa. The H-1B visa is available to temporary workers employed in a specialty occupation, i.e., a job that requires the attainment of at least a bachelor’s degree. This visa allows recipients to work in the United States for up to 6 years. The visa may be extended beyond the 6-year limitation if the recipient has an approved or pending I-140 (among other requirements). AC21 §§104(c), 106(a). International students with degrees related to technology may consider interning or working for global tech companies. According to Business Standard, a leading business site in India, tech giants, such as Google and Apple, have been the most prominent H-1B sponsors in 2016.

Furthermore, international students from Canada and Mexico may apply for a TN visa, pursuant to the North American Free Trade Agreement (“NAFTA”). The requirements for a TN visa are similar to those for an H-1B visa. However, a TN visa is not subject to a prevailing wage requirement and is not subject to an annual numerical limitation (among other differences).

In light of the foregoing, international students may remain in the United States following graduation. If the immigration system is navigated correctly, international students may receive legal permanent residency or even U.S. citizenship. But that requires patience and time. Moreover, that requires international students to take small, but crucial steps before graduation.

Having the right immigration attorney would make a difference in your case. If the correct path is taken, international students may remain in the United States indefinitely. The attorneys at Wilner & O’Reilly have years of experience handling the most complicated immigration cases. Contact us to schedule a free in-person consultation at one of our many offices.

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