Author: Evelyn Nam| April 11th, 2024 | 4 Minute Read
“I used to think that if I became really, really good at what I did, things would work out for me. That’s not really the case with the U.S. immigration system,” said Toni Xu, an immigration lawyer at Xu Law Group and a founder of opencitizen.io.
In 2008, Xu arrived in the U.S. from China as an ambitious 17-year-old, hoping to study in an education system less restrictive than the one at home. Over the next 10 years, she earned bachelor’s, master’s, and JD degrees from Tulane University, with the goal of finding a job and building a life in the U.S. But despite her hard work and grit, she was refused a work visa three times.
It wasn’t that she wasn’t qualified or didn’t have the skills to succeed. The H-1B visa, the type she applied for, is allocated by a lottery system in which applicants are selected at random. “I still thought I should’ve tried harder,” Xu said.
The U.S. labor market is desired by many foreign students, who invest in their education often with the hope of being able to work and build a life in the country. International students are required to prove their English proficiency through assessments such as the TOEFL and submit proof of nationality, citizenship, health records, and finances to support themselves. They can spend months — or even years — rigorously preparing for admission.
Yet, when it comes to finding quality jobs in the U.S., the deciding factor often comes down to immigration status.
While this is a systemic problem that needs to be addressed at the institutional level, international students can benefit from learning about how the U.S. visa system works before deciding to study abroad. With this knowledge, you can more easily outline a realistic career path — a path that will allow you to work in the U.S. after graduation.
To help, we’ve put together a general overview of what to know about obtaining a work visa in the U.S. While it’s not a substitute for consulting with a lawyer, it might give you some ideas on where to start.
The U.S. labor market is desired by many foreign students, who invest in their education often with the hope of being able to work and build a life in the country.
OPT and CPT
To acquire work experience, you must first apply for temporary employment authorization, known as either Optional Practical Training (OPT) or Curricular Practical Training (CPT). According to the Department of Homeland Security, both OPT and CPT allow you to be employed during and after your course of study. The major difference is that CPT must be completed before graduation, whereas OPT can be completed either before or after graduation — meaning you can use your OPT to work in the country for a short period after you leave school.
The duration of OPT depends on your degree program. If you have a STEM degree, your OPT can last for up to three years. For other degrees, it typically lasts for just one year. You must acquire a temporary work visa if you wish to stay in the country once your OPT has ended.
Two important caveats to consider:
- If you use any of your OPT while you’re in school, it will be deducted from the time you have remaining to work in the U.S. after you graduate. For example, if you use three months of your yearlong OPT in a paid summer internship before your senior year of college, you will only have nine months of OPT left when you graduate.
- You can apply for both CPT and OPT. However, if you work for 12 months, full-time, on CPT while you’re in school, you won’t be eligible to apply for OPT at all. If you work part-time on CPT (even for more than 12 months), it won’t impact your eligibility to apply for OPT.
What this comes down to is that after graduation you have one to three years — and sometimes less — to find sponsorship for a work visa. You will likely feel a lot of pressure to prove yourself and to show your employer that you’re worth the investment and cost that sponsorship requires.
Selection for H-1B is random and is not based on merit: It doesn’t matter what grades you earned, which company you work for, or the salary you’ve been offered.
If you do find an employer who will support a work visa, two categories of visas allow foreign students to work full-time upon graduation: temporary and permanent.
Temporary Visas
Temporary visas like H, L, O, and EÂ allow you to work in the U.S. temporarily, with a date of expiration on which you must leave the U.S. Often, applicants for these visas include a letter of intent that they will be leaving the country when their visa expires.
E and L visas
E visas are issued for treaty traders, investors, and foreign nationals from countries with which the U.S. has a trade treaty. Accordingly, this visa type isn’t available for prospective workers from China and India.
L visas are for internal company transfers. This visa type allows employees from the company’s home country to come to the U.S. on a project basis. If you have a specific skill set needed by the company at that time and have specific knowledge about the company, a multinational corporation can issue this visa to use your talents in the U.S. division of their company.
H visas
Among the H-visas, H-1B is the most commonly sought by international students in the U.S.; it is allocated through a lottery system. By April of each year, companies must submit an application to sponsor foreign workers. Selection for H-1B is random and is not based on merit: It doesn’t matter what grades you earned, which company you work for, or the salary you’ve been offered.
A student with only a bachelor’s degree is argued to be at a disadvantage with H-1B: The lottery’s quota is designed to favor students with master’s degrees or other advanced degrees over those with just bachelor’s degrees. Experts say that the path to obtaining an H-1B visa is a combination of hard work and luck.
“Students need to have a company not only willing to hire them. They need to have a company willing to petition for them. Companies are supposed to pay some extra fees for that,” said Michael Goldman, an immigration attorney at Michael Z. Goldman Law. “And then you need to be lucky to be selected for the visa,” he added.
If you receive a company-sponsored H-1B visa and want to change jobs, your new company must be willing to sponsor you. If they won’t, you can no longer work in the U.S. This is all the more reason to do your research and understand whether a company would be open to sponsoring your visa before accepting a job offer. “If your stay here is dependent on whether the company lets you work there, consider what can go wrong,” said Xu.
O visas
Another visa gaining popularity among international students in the U.S. is the O visa. The O visa, also known as the “genius visa” or “artist visa,” has a demanding application process. The O-1A visa is issued for individuals with extraordinary abilities in business, science, athletics, or education. The O-1B visa is for artists.
A checklist outlines the standards of “extraordinary abilities.” You must have received a major internationally recognized award such as the Nobel Prize OR meet at least three criteria to provide sufficient proof of “extraordinary abilities,” including measures such as receipt of recognizable national or international awards, publication by reputable media organizations in your field, or membership in a prestigious association in your field. The O-1 visa allows foreign workers with soft skills to enter the U.S. labor market.
According to Michael Wildes, an immigration lawyer of 25 years at Wildes & Weinberg PC, the rise of influencer culture has effected a meaningful change in the O-1 visa landscape. “Many people have been able to successfully file a petition for O visas based on their following and influence online.”
But even then, foreign nationals wishing to apply for an O visa need money: “I’ve seen people whose petition got denied only because their lawyer did a bad job of putting together a case, not because their qualifications aren’t good enough,” Wildes added. The average retainer for immigration attorneys ranges from $5,000 to $8,000.
Permanent Visas
Permanent visas, while having much higher standards for application approval, lead to green cards allowing workers to stay in the U.S. as permanent residents. Some of the few permanent visas include employment-based visas: EB-1, EB-2, EB-3, EB-4, and EB-5. Each visa has different eligibility criteria surrounding skills, background, and education.
International students can apply directly for these visas, but they are highly competitive and usually filed by sponsoring companies after successful completion of the temporary H-1B visa. Xu has seen people successfully take a chance on permanent visas, but she doesn’t necessarily recommend that route. “The standard is so much higher,” she said.
When you understand the different types of visas you may be eligible for and what it takes to compile a strong application, some of the anxiety you may be feeling will lift.
Some employers may sponsor foreign workers for a green card on a permanent visa, which is also generally done only after the worker has secured an H-1B. The whole process can take as long as two to two-and-a-half years. So students must be strategic when initiating this discussion with employers, broaching it during the second year of their H-1B. The H-1B visa lasts three years and is renewable only once, making the total time available on the visa six years. Some workers can file for a seventh-year extension if they meet the qualifications.
An Uphill Climb — but Not Impossible
Xu explained that before the visa application process starts, most of her clients believe their skills, achievements, and successes will be enough to obtain a work visa. That’s not the case. “For most foreign workers, even among the most talented and skilled ones, you need to have luck, money, love, or proof of exceptional abilities.”
Navigating these complex legal systems can add to the anxiety, distress, and self-esteem struggles you may confront as an international student. There may be times you feel “not good enough” or downright hopeless. “What more do I need to do?” you may ask yourself in these moments.
There is no easy solution. In fact, the broken immigration system is going to take a long time to fix, with an intentional effort from leaders. It’s a complicated, confusing system that often produces unfair results.
In those inevitable moments when you feel like the system is too big and complicated to decipher, remember that you’re not powerless. Educating yourself can help you see a future and ways to get there. When you understand the different types of visas you may be eligible for and what it takes to compile a strong application, some of the anxiety you may be feeling will lift. With this information, you can make strategic decisions about your career, including who you choose to work with and what kind of sponsorship you advocate for.
