Brainstorming for F1 Students from India or China - Options after Graduation
F-1 Students from India or China face special issues that complicate their ability to stay in the U.S. after they complete their course of study; this post will go through some ideas to consider
The purpose of this post is to provide information to international students in the United States on F-1 visa status. This post is particularly geared towards people born in India or China whose options are more limited than people born in other countries. But the truth is, the options are limited for everyone - it is just that the options are PARTICULARLY limited for people born in India or China.
First, a word about the limitation that people from India and China face. This limitation relates to “per country limits” which mean that it is not easy for them to progress to a green card because of long wait times (backlogs) based on country of birth. People NOT born in India or China can potentially go straight from F-1 to green card whereas it is a much harder road for people born in India or China.
The “per country” limits relate to country of birth so if you were born in India or China but you are now a citizen of Canada, then you are still subject to the long wait times for a green card (although as a citizen of Canada you might be eligible for TN or E-2 visas that you could not get as a citizen of India or China).
There is a special exception to the “per country” limits based on “cross-chargeability” of your spouse. So if you were born in India, for example, and your spouse was born in UAE (even as an Indian citizen); then you can use the UAE country quotas. The cross-chargeability concept applies to spouses but not children, that is, you cannot use your child’s country of birth for this process. And always the analysis is country of birth, not country of citizenship.
OPTION/IDEA #1: Private Sector H-1B (subject to cap) -
The traditional option for F-1 students after they graduate is to pursue a job in the private sector and get sponsored for an H-1B. This option still exists but because the H-1B private sector visas are subject to a cap (annual limit), they are not easy to get. But if you qualify for STEM OPT, then you probably have 3 chances to ‘win’ the H-1B cap lottery if your employer puts you into the lottery right away (which they should). During that time you could be building your profile to qualify for O-1 or EB-1.
You can read more about H-1B visas at the USCIS website, here.
Every H-1B petition requires a Labor Condition Application (LCA). LCAs are governed by rules of the U.S. Department of Labor (DOL). You can read about LCAs on the DOL website, here.
OPTION/IDEA #2: Cap-Exempt H-1B -
Certain employers are EXEMPT from the H-1B cap (annual limit of H-1B visas). The cap exemption most commonly applies to colleges and universities and health systems and hospitals affiliated with colleges and universities. But there are a lot of obscure situations and one thing to consider is finding employment at a cap-exempt employer. Depending on your field of study and personal/professional interests, this may or may not be easy to do. I do not believe there is any public list of organizations that are exempt from the cap but with careful research, you can probably learn about more options.
OPTION/IDEA #3: “Day 1” CPT -
Certain universities (albeit fairly obscure ones) offer “Day 1” CPT (Curricular Practical Training). These universities are therefore trying to accommodate people who get F-1 OPT/STEM OPT and try for the H-1B cap but they are not chosen so they re-enroll in a Master’s (or second Master’s) and use Day 1 CPT as work authorization. During the Trump Administration these programs were under increased scrutiny but less so under Biden and in addition to less regulatory scrutiny, the possibilities of taking classes via zoom have made Day 1 CPT increasingly attractive post-pandemic.
OPTION/IDEA #4: O-1 -
An O-1 visa petition is an employer sponsored petition so you cannot self-petition and it is a temporary visa petition that is NOT subject to an annual limit but has a high standard for approval. You have to establish that you are outstanding in your field. One thing people often do not understand is that even though ‘on paper’ O-1 and EB-1A look very similar, the adjudication standards are very different and so it is not uncommon or unreasonable for a STEM Ph.D. or maybe even someone with a Master’s degree to qualify for O-1 after 3 attempts at getting an H-1B cap lottery selection whereas the same candidate might face challenges trying to get an EB-1A self-petition approved. But if you are thinking about this, you should be bolstering your profile. You can read about the O-1 criteria on the USCIS website, here.
In my newsletter (which you are reading now), I plan to provide regular updates and ‘deep dives’ on how candidates can build their profile to qualify for O-1 and EB-1. You should always know that YOUR EFFORTS CAN MAKE A DIFFERENCE.
OPTION/IDEA #5: EB-1 -
Some people just skip getting another temporary visa including O-1 and go straight from F-1 to Green Card. This is the ‘big risk, big reward’ strategy. There are even increasingly a cottage industry of mentors and coaches to help people go from F-1 to EB1A. Some of these coaches charge you to ‘get you in shape’ over a 6 to 12 to 18 month period. Whether you want to pursue an option like this depends on your risk tolerance and budget but there are indeed people succeeding on the harrowing journey to go from F-1 to EB-1A.
I will have more to say about EB-1A in the coming weeks in this newsletter.
OPTION/IDEA #6: Concurrent H-1B with Cap-Exempt Employer (perhaps Open Avenues) -
I hope I am not telling you anything new when I tell you that U.S. immigration law is strange and frustrating. It is also highly technical with lots of special exceptions or considerations.
One special consideration is the fact that if you obtain an H-1B at a cap-exempt employer, like a university or a university affiliate like Open Avenues Foundation, then you can qualify for a 2nd H-1B at a private sector employer.
The law allows someone to hold two H-1B approvals at the same time. This is known as H-1B concurrent employment.
The law allows someone to get an H-1B first at a cap-exempt employer and then get a ‘concurrent’ H-1B at a cap-subject employer (private sector employer). This is a fairly exotic strategy but increasingly attractive due to the challenges of the H-1B cap.
So if your first H-1B was with University of Minnesota (a cap-exempt employer) and your second, concurrent H-1B was at Google (a cap-subject employer), you would be okay. Of course you would have to work for both employers at the same time although your cap-exempt employment could, in theory, be part-time.
OPTION/IDEA #7: Move to Canada (like America, but colder with more expensive housing) -
Some people who run out of F-1 work authorization seek transfers to Canada where they obtain work authorization through a generally more efficient system than what we have in the United States. After you have worked in Canada for 12 months, you might be eligible for a L-1 visa to return to the US. The details of this strategy (F-1 to Canada to L-1) are outside the scope of this post but something to explore in the right circumstances.
In this newsletter, in other posts, I plan to share more granular information on the above ideas.
Feel free to email me (bob@webberimmigration.com) to discuss these topics or related topics, or add something in the comments.
Thanks!