US Post Study Work Visa Options for Graduates
If you intend to remain in the USA after you have completed your course of studies, you will need to secure new status to follow on from your student visa so as to remain lawfully in the US. It will be important to ensure your student visa is not left to expire while you remain in the US as this is likely to affect any future US immigration applications.
We consider the US post study work visa options that may be available to you, either by extending your visa or changing your status.
What are the main US post-study work visa options?
Having completed your course of studies, and depending on which student visa you are categorised under, you will have a grace period before you are required to leave the United States. For F1 students the grace period is 60 days, while for M1 students it is 30 days.
As a graduate student your employment-based options for staying in the United States will fall broadly between enrolment in an Optional Practical Training (OPT) program; finding an employer to sponsor you for a US work visa or investing or establishing an enterprise in the US. Outside of employment, you may also consider continuing your studies in the US or relying on personal grounds to change your status.
Optional Practical Training (OPT)
Optional Practical Training is a program for both undergraduate and graduate students on F-1 visas, whereby students are entitled to up to 12 months study-related training, either during their course or once they have graduated.
To be eligible for this program, students must have either received their degree or have been studying in the US for one full academic year, and their employment must be directly related to their major field of study.
To find out more you should speak to your Designated School Official (DSO) prior to completion of your course. The DSO is the person assigned by the school or institution to assist and manage the status of overseas students. As such, the DSO can help you to submit the work authorization forms to US Citizenship and Immigration Services (USCIS) to be deemed eligible for this program.
While the OPT may only allow you to stay in the US for a year after your graduation, this can help you build invaluable connections that may help you secure sponsorship.
You may also qualify for what’s known as a STEM OPT extension, where students who have studied science, technology, engineering or mathematics may be eligible to extend the length of their OPT program to 24 months – increasing the maximum OPT period to 3 years. This must, however, directly relate to an F-1 student’s program of study in an approved STEM field.
Eligible F-1 students with STEM degrees who finish their program of study and participate in an initial period of regular post-completion OPT will have the option to apply for a STEM OPT extension.
H-1B Temporary Work Visa
The H-1B visa is a temporary work visa for graduate-level workers wanting to undertake a job role in a speciality occupation that requires theoretical or technical expertise.
As an H-1B visa holder, you may be initially permitted to live and work in the US for a period of up to three years. Your time period may be extended, but generally speaking cannot go beyond a total of six years.
Permanent residence status may be attainable if your employer is prepared to offer you a permanent position.
To qualify as a ‘specialty occupation’, the job must require a bachelor’s or higher degree as a minimum entry requirement, or the nature of the specific duties are so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
To be eligible for this type of visa, you must prove to USCIS that you are uniquely qualified for the position in the company because of your field of study.
You will also need the offer of a job from a US employer who will sponsor you, who can then petition for a H-1B visa on your behalf with USCIS.
Your prospective employer will also need to file a Labor Certificate Application (LCA) with the Department of Labor prior to submitting an employment-based immigration petition.
The application requires the employer to attest, amongst other things, that it will comply with the following labor requirements:
- The employer will pay the beneficiary a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for your position in the geographic area in which you will be working.
- The employer will provide working conditions that will not adversely affect the working conditions of similarly employed U.S. workers.
Only once approval has been granted by the DOL, your employer can submit the visa application to USCIS. The employer will then be notified when the petition has been approved.
Please note that there is a cap on the amount of H-1B visas that are available each fiscal year, currently 65,000, although the first 20,000 petitions filed on behalf of beneficiaries with a US master’s degree or higher are exempt from the cap.
Additionally, H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization are also not subject to this numerical cap.
Investing in the USA
If you who have funds to invest, you may also explore your eligibility for the E2 treaty investor visa. This is a non-immigrant, temporary visa for nationals of countries with whom the US maintains a treaty of commerce and navigation to invest in a US-based enterprise. The company can be established or a start up.
The requirements for the E-2 visa mean the investment must be considered ‘substantial’; what constitutes substantial will be determined by the kind of company being invested in, which we discuss in detail here. You will also need to build a business plan to establish that the company meets the requirements under the visa classification.
Need assistance
While there are relatively limited US post study work visa options for overseas graduates, seeking expert legal advice well in advance of your visa expiry can help improve your prospects of being able to stay in the US with lawful status.
Depending on your circumstances, you may be eligible for a visa to remain in the US on the basis of a personal relationship, such as marrying a US citizen. For advice on your immigration options to stay in the US after your graduate, contact us.
This article does not constitute direct legal advice and is for informational purposes only.
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Chambers & Partners, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.
