When Immigration Matters

5 Options to Get from F1 Student Visa to Green Card

Posted by Karen-Lee Pollak on Tue, Oct 17, 2017 @ 11:30 AM

Businessman standing in front of opened doors and making decision-604915-edited.jpegF1 Student Visa to Green CardThe U.S. is not just home of the world’s largest and most robust economy, which attracts investors and entrepreneurs from across the globe. It is also an academic and research leader that, each year, attracts hundreds of thousands of students from around the world who wish to advance their knowledge.  

If you are a student currently living in the U.S. on an active F1 visa, then you may be eligible to apply for a Green Card (a.k.a. Permanent Resident Card). Obtaining this will allow you to legally live and work in the U.S.

Regular vs. Conditional Permanent Resident Green Card 

If you qualify as a regular permanent resident, your Green Card will be valid for 10 years. If you qualify as a conditional permanent resident, your Green Card will be valid for 2 years. Typically, conditional permanent resident status is available to petitioners who seek to obtain their Green Card through a marriage that is less than two years old (this is discussed further in this article).

A regular permanent resident Green Card can be renewed, but a conditional permanent resident Green Card cannot. However, those with the latter type of Green Card can petition to have their status changed from conditional to permanent, which if granted would extend the expiration date and be subject to possible renewal. Keep in mind that either a regular permanent resident or conditional permanent resident Green Card will can be revoked at any time if the visa program’s rules are broken.

Generally speaking, there are 6 options that could allow you to get from F1 student visa to Green Card:

F1 Student Visa to Green Card Option #1: Get an Employer Sponsorship

Provided that an employer meets certain eligibility requirements, you can petition for an EB2 or EB3 visa (a.k.a. Employment-Based Green Card).

F1 Student Visa to Green Card Option #2: Enter the Green Card Lottery 

Once each year, USCIS offers the Green Card Lottery (formally known as the Electronic Diversity Visa Lottery). Be aware that there are a limited number of Green Cards available, and petitioners from certain countries cannot enter the lottery because their country has sent more than 50,000 immigrants to the U.S. in the last five years. Check to ensure that your native country is not on the list before pursing this as a potential option.

F1 Student Visa to Green Card Option #3: Marry a U.S. Citizen

It may be possible to obtain a Green Card through marriage (as noted above, this would almost certainly be a conditional permanent resident Green Card if the marriage is less than two years old).

However, be advised that USCIS is highly skeptical of petitioners who pursue this option. They will conduct rigorous background checks, examine documents, and perform interviews to determine if, in their view, the marriage is legitimate, or if the union is for the purpose of helping one spouse obtain a Green Card.

With this being said, if you do indeed obtain a Green Card by way of marriage, you are not forced to stay married. Ideally you will have a happy matrimonial life. But if you ultimately separate or divorce, you will not necessarily lose your Green Card. However, you will need to convince USCIS that the marriage ended for legitimate reasons, and not because it was expedient to do so once you received your Green Card. 

Also note that if successfully petition to switch from a conditional permanent resident Green Card to permanent resident Green Card (usually after you have been married for at least two years), then a dissolution of your marriage will not be factored into your eligibility consideration.

F1 Student Visa to Green Card Option #4: Petition for Asylum

If there is a civil war currently happening in your native country, or if you are part of a persecuted population or group and returning would put your life in danger, then you may be able to obtain a Green Card by petitioning for asylum. USCIS assess each petition on a case-by-case basis, and the process is extremely detailed and complex.

F1 Student Visa to Green Card Option #5: Get Sponsored by a Relative 

If you have a relative who owns a business in the U.S., then you may be able to obtain sponsorship that would result in a Green Card. However, this is a difficult option and several criteria must be met. For example, you must be hired for your qualifications, and not because you are a relative. In addition, the employer (i.e. your relative) must demonstrate to the Department of Labor that they attempted in good faith, but ultimately failed, to fill the position by hiring a U.S. citizen.

An Important Note

If you wish to get from F1 student visa to Green Card, then regardless of which option you pursue, your application will need to take into consideration all of your unique details — especially since USCIS evaluates petitions on a case-by-case basis, and many are rejected for being incomplete, because of missed deadlines, or because the argument for the petitioner to remain the U.S. was not convincing enough. 

To learn more, and have your questions clearly and fully answered, contact the Pollak PLLC team today. We are here to help!  

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Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at [email protected] or under her twitter handle law_immigration.

NEW 24 Month STEM Employment Authorization (OPT) for F-1 Students

Posted by Karen-Lee Pollak on Thu, May 12, 2016 @ 4:29 PM

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Effective May 10, 2016, eligible F-1 nonimmigrant students with STEM degrees from Student and Exchange Visitor Program (SEVP)-certified and accredited U.S. colleges and universities may apply for a 24-month STEM OPT extension from their school and employment authorization from United States Citizenship and immigration Services (USCIS). This extension effectively replaces the previous 17-month OPT Extension.

Can I obtain an additional 7 months of work authorization if I am on a 17-month OPT

Students currently participating in a 17-month STEM OPT extension may be eligible to benefit from the additional seven months of training and must apply for updated employment authorization from USCIS by August 8, 2016. Any 17-month STEM OPT EAD that USCIS issued on or before May 9, 2016, will remain valid until the EAD expires is terminated or revoked. DHS will not automatically convert 17-month extensions into 24-month extensions.

From May 10, 2016, through August 8, 2016, certain students with such EADs will have a limited window in which to apply for an additional seven months of OPT, effectively enabling them to benefit from a 24-month period of STEM OPT. To qualify for the additional seven-month extension, the student must satisfy the requirements below and pay all applicable fees. For students who choose to seek an additional seven-month extension, the new enhancements apply upon the proper filing of the Form I-765 requesting the seven-month extension. 

DHS recommends that students who choose to request the additional seven-month extension obtain the necessary DSO recommendation and file their application as early as possible in advance of the August 8, 2016, application deadline. 

To qualify for the seven-month extension, such students must have at least 150 calendar days remaining before the end of the student’s 17-month OPT period at the time the Application for Employment Authorization is filed and they must meet all requirements of the OPT 24-month extension. 

If an application for a seven-month extension is approved, USCIS will issue an EAD with a validity period that starts on the day after the expiration date stated in the 17-month STEM OPT EAD.

 How Do I Qualify for the 24- Month OPT Extension

 To qualify for a 24-month STEM OPT extension, an F-1 student participating in an initial period of regular post-completion OPT must: 

  • Have a degree in an eligible STEM field from a Student and Exchange Visitor Program-certified school that is accredited when the student submits their STEM OPT extension application to USCIS.
  • Pursue their STEM OPT extension through an employer that is enrolled in USCIS's E-Verify employment eligibility verification program.
  • Select a STEM OPT employer that provides the student with formal training and learning objectives.
  • Work a minimum of 20 hours per week per employer.
  • Complete a FORM 983 Training Plan
  • WHAT IS FORM 983 or Training Plan
  •  
  • Before applying to USCIS for a STEM OPT extension, a STEM OPT student must complete, sign and submit the Form I-983 to their DSO.  You can download the Form and Instructions at https://www.ice.gov/sites/default/files/documents/Document/2016/i983Instructions.pdf and https://www.ice.gov/sites/default/files/documents/Document/2016/I-983.pdf
  • The STEM OPT student and their prospective employer must work together to complete this form. STEM OPT students and their employers are subject to the terms of the 24-month STEM OPT extension regulations and Form I-983 instructions, effective as of the start date requested for STEM OPT, as indicated on the form.
  •  
  • Students are responsible for facilitating the completion of this form, submitting it with their STEM OPT application and returning it to their DSO, who will keep it in the student’s record. DHS maintains the discretion to request and review all documentation for eligibility concerns.
  •  
  • The STEM OPT student must complete Section 1 of the Form I-983 and work with their prospective employer to complete Sections 2-6. In Section 5 of the Form 983 the Employer should describe what tasks and assignments the student will carry out during the 
  •    training and how these relate to the student’s STEM degree. The plan must cover a specific span of time, and detail specific goals and objectives.
  • For students currently on the 17-month STEM OPT extension and requesting conversion to the terms and conditions of the new 24-month STEM OPT extension, the student and employer will be subject to the terms and conditions of the Form I-983 as of the date of receipt at USCIS. Thus, the requested period should identify a start date on or around the date that the student files their seven-month STEM OPT extension with USCIS The USCIS offers useful tips to complete this form on their website at https://studyinthestates.dhs.gov/employers-and-the-form-i-983Reporting
  • Requirements
  • There are reporting requirements associated with STEM OPT extensions.
  • The student must work with their potential STEM OPT extension employer to complete the Form I-983, which must include how the training opportunity has a direct relationship to the student’s qualifying STEM degree.
  • Employers must report to the relevant DSO (indicated on the Form I-983) when an F-1 student on a STEM OPT extension terminates or otherwise leaves their employment before the end of the authorized period of OPT. The employer must report this change to the appropriate DSO no later than five business days after the student leaves employment.
  • STEM OPT students must report to their DSOs every six months. As part of such reporting, STEM OPT students must confirm the validity of their Student and Exchange Visitor Information System information, including:
      • Legal name.
      • Address.
      • Employer name and address.
      • Status of current employment/practical training experience.
  1. STEM OPT students must do an annual self-evaluation on Form 983 and must report to their DSO about the progress of the training experience. Students must sign the self-evaluation prior to submitting it to the DSO, who will include it in the student's record.
  2. Both the student and employer are obligated to report to the student's DSO any material changes to, or material deviations from, the student's formal training plan.UnemploymentDepartment of Homeland Security allows STEM OPT Students an additional 60 days of unemployment during the OPT Stem Extension Period. The 150-day unemployment limit that is applicable to students who are granted the 24-month STEM OPT extension is also applicable to students whose seven-month extension is approved under the transitional plan. These students are allowed an additional 60 days of unemployment, for a total of 150 days of allowable unemployment (90 days during the initial period of post-completion OPT plus an additional 60 days during the extension period). This 150-day unemployment limit will apply to a student seeking a seven-month extension only upon approval of that extension (and not during the filing of such extension).   

Our firm provides full-service professional legal advice and representation to help you find an immigration solution to your visa needs.  Please contact us to discuss your Immigration Options

 

US. Customs no longer providing admission stamps for students

Posted by Karen-Lee Pollak on Fri, Sep 07, 2012 @ 10:15 AM
As of Aug. 10, 2012, U.S. Customs and Border Protection (CBP) no longer provides admission stamps on Forms I-20/DS-2019 for prospective and returning international students and scholars (traveling with F, M, and J visas) seeking admission to the United States. This change makes CBP processes consistent with U.S. Citizenship and Immigration Service’s (USCIS) recent change to stop stamping Forms I-20/DS-2019.
International student visitor moves through CBP processing
USCIS implemented this change as part of the launch of its online immigration benefits system, USCIS Electronic Immigration System, as it transforms the agency from a paper-based system to an online environment. ( USCIS Electronic Immigration System )

Although placing an admission stamp on Forms I-20/DS-2019 has been a longstanding practice at CBP, it is not required. While the admission stamps on Forms I-20/DS-2019 are not indicators of lawful status or academic program duration, some state and federal benefit granting agencies have required international students and scholars to present stamped versions. State requirements vary.

If a state benefit granting agency rejects an unstamped Form I-20/DS-2019, applicants may make an appointment with USCIS online through InfoPass and take their Form I-20/DS-2019 to their local USCIS office to be stamped. ( InfoPass ) This transitional step will end on Nov. 21, 2012.

International students and scholars who encounter issues with their state or federal benefit applications should continue to contact the Immigration and Customs Enforcement Student and Exchange Visitor Program (SEVP) at (703) 603-3400 or [email protected].

 

US Immigration Basics for South Africans | Nonimmigrant Visas (Part 2)

Posted by Karen Pollak on Thu, Sep 09, 2010 @ 4:33 PM

What is a Temporary (Nonimmigrant) Visa?

US ImmigrationPeople who want to come to the United States for a limited time need what is called a "nonimmigrant" visa. This lets them participate in specified activities (such as studying, visiting, or working) until their visa runs out. Students and businesspeople make up the largest groups of nonimmigrant visa holders. Nonimmigrant visas are also issued for tourists, exchange visitors, and workers with some kind of specialty that is lacking in the U.S. workforce.  Most South Africans obtain a nonimmigrant visa first.  Most of these visas are valid for three years and then may be renewed for three years.  During that six year period, most South Africans apply for a green card especially if they were not initially eligible for permanent residency when they applied for their nonimmigrant visa.

Applying for a U.S. Visa
After figuring out what type of visa or green card you're eligible for, you'll need to figure out how to get it. Most people must obtain a visa at a U.S. consulate in Johannesburg before departing for the United States. You will need an appointment at the Consulate.  If you're already in the United States legally, you may be able to apply to "adjust" your status to permanent resident, or "change" your status to another type of visa.

What are the most Common U.S. Visas issued to South Africans?

The Most Common Non-Immigrant Visas Issued to South Africans

B-1/B2 Visa Business or Tourism Visitors
These visas are issued to persons wishing to visit the U.S. or conduct business, including such things as a need to consult with business associates, negotiate a contract, buy goods or materials, settle an estate, appear in a court trial, and participate in business or professional conventions or conferences or, where an applicant will be traveling to the United States on behalf of a foreign employer for training or meetings. The individual may not receive payment (except for incidental expenses) from a United States source while on this visa.

The following activities require a working visa, and may not be carried out by business visitors:

  • Running a business 
  • Gainful employment
  • Payment by an organization within the US
  • Participating as a professional in entertainment or sporting events

Student Visas -The F or M Visa
Are granted to nonimmigrant’s coming to the US to participate in a full time course of study. As with all nonimmigrant classifications, the most important requirement to obtain a student visa is the demonstration of nonimmigrant intent. The student must maintain a home abroad that they have no intention of abandoning. The student must be coming to the US to pursue a full course of academic study at a community college or accredited university in order to qualify for an F-1 student visa and must pursue a full time course of study in vocational or other on academic programs, other than language training to qualify for an M-1 visa.  In either case, the student must demonstrate that they possess the financial resources to allow them to study without the need to engage in unauthorized employment. Most students are able to get approved for a stay equal to the duration of their studies in the US and can study in any pre-approved institution.

The H-1B Visa or Professional Visa
Is for foreign workers who will hold specialty occupations. Generally speaking, a specialty occupation is one which " which requires the attainment of a bachelor's degree or higher in a specific specialty as a minimum for entry into the occupation in the United States." However specialized knowledge may be acceptable in lieu of a degree. The foreign national must have the required degree, or its equivalent, in a subject closely related to the position.

You must have a job offer from a qualified U.S. employer for work to be performed in the U.S., The application process for the H-1B visa includes the employer filing a Labor Condition Application (LCA) with the U.S. Department of Labor certifying that the employer will pay the prevailing wage.  It also includes filing a petition with the USCIS. This process usually takes several months. However, the USCIS offers an option for premium processing. For a $1,000 fee, the USCIS will process the petition in 15 days or less.

The L-1 Visa or Inter-company Transfer Visa
Is granted to people who have worked outside of the U.S. as a manager, executive, or in a position involving specialized knowledge, and are now seeking to come to the U.S. to work in a related U.S. company in a same capacity. Many international companies use an L visa to transfer their executives, managers, or workers who are in position involving specialized knowledge, to the U.S.

L-1 Visa Requirements

  • Worker is an executive, manager, or in a position involving specialized knowledge, 
  • Worker has been employed continuously for at least 1 year within 3 years preceding the time of the L visa application, 
  • The company outside the U.S. is related to the U.S. company in some form (parent-company, branch, affiliate, subsidiary, etc.), 
  • Worker seeks to enter the U.S. temporarily, and 
  • Worker will continue to work for that company as an executive, manager, or in a position involving specialized knowledge

A spouse and minor children of an L-1 beneficiary may be granted L-2 visa status. An L-2 visa beneficiary may become a student in the U.S.  They also may work in the United States.

J-1 Exchange Visitor Visa (Cultural Exchange Training Visa)
In order to obtain a J-1 visa for an employee, a company must either become designated by the Department of State as a J-1 visa program sponsor or initiate an application through an approved third party training sponsor organization.

There are dozens of organizations that are authorized by the Department of State to act as a third party sponsor of J-1 training programs. These organizations review and approve the application and training program of a proposed employer and issue a Certificate of Eligibility for J-1 training. Each of the third party program sponsors has different requirements, filing fees and procedures. Almost all third party sponsor applications require that the employer submit a detailed training program. The training program must spell out in explicit detail the type and chronology of training which will be accomplished, even if it will take place through on-the-job training.

Since the J-1 visa is a nonimmigrant visa, applicants must demonstrate that they have a residence abroad which they do not intend to abandon. As is the case with the F-1 student visa or the B-2 visitor visa, applicants for a J-1 visa must prove to the US Consulate that they have strong enough family, economic and social ties to their own country

The O Visa for Aliens of Extraordinary Ability 
Is for aliens with extraordinary ability in the sciences, arts, education, business, or athletics, certain aliens accompanying or helping those aliens, and their family members. There is no quota on the number of O visas issued each year.  The O-1 visa can be given only on the basis of individual qualifications. There are three standards for the O-1 visa. The most difficult standard applies to those persons in the sciences, education, business, and athletics; a much less difficult standard applies to individuals in the arts, and a medium-level standard applies to those of extraordinary achievement in the motion picture or TV industries.  This visa is usually issued for three years and may be renewed for three years. 

P Visa for Athlete/Entertainer
The P category covers entertainers and athletes who cannot meet the standard for extraordinary ability in the O category.  The P visa is given to athletes, artists and entertainers who compete individually or as part of a team at an national or internationally recognized level, and also to aliens who perform with, or are an integral and essential part of the performance of an entertainment group that has received international or national recognition as “outstanding” for a “sustained and substantial period of time.”  These visas are issued for the duration of the performance events. 

R-1 Religious Visa
This visa allows religious workers to come to the U.S temporarily to work in religious occupations. Examples of R visa religious workers are monks, nuns, missionaries, and religious brothers and sisters.

R Visa Requirements

  • The religious worker must have been a member of a religious denomination for at least 2 years immediately preceding the filing of the R-1 visa application
  • The religious denomination must have an affiliation in the United States 
  • The petitioning U.S. organization must be a non-profit religious organization that is tax exempt, or one that would be tax exempt if it had applied 
  • The religious worker must enter the U.S. to pursue religious vocation or occupation, and prove that there are sufficient funds to support the religious worker’s financial needs without recourse to employment other than the religious work for which the visa is granted
  • The R-1 visa is usually issued for 3 years with an option of one 2 year extension

H-3 Training Visa
Is issued to foreign nationals to receive training which is not available in their country.  These visas are issued to special exchange visitors to receive training in educating children with physical, mental or emotional disabilities and to Multinational companies to send their foreign employees to the U.S. for on-the-job training. 

Next up...The most common Green Cards issued to South Africans. 

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