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Visa Basics Employment of Foreign Graduates

September 17, 2000
Related Topics: Immigration, Featured Article
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American universities and colleges attract the world’s best and brightest.Many foreign nationals attend U.S. universities to receive a quality educationand train for careers utilizing cutting-edge technologies that are oftenunavailable back home.

Foreign students attending university utilize the F-1 student visa. This visapermits the student to stay in the U.S. for the duration of his studies, whichis usually for a four-year period. Thereafter, foreign students are permitted towork for a period of one year in a phase known as "Optional PracticalTraining."

The purpose of this phase is to permit students to obtain real-worldexperience to complement their years of study. The INS issues EmploymentAuthorization Documents (a.k.a. "work permits") which are valid forone year. No extensions of this work permit are permitted. After this period isover, foreign nationals must either seek to change their status to a visa thatextends their work authorization or return home.

Many U.S. employers hire foreign nationals upon graduation when theindividual can utilize the one-year of training. During this time, the issue ofextending the foreign national’s work authorization inevitably comes up whenboth employer and employee are interested in the employee’s continuedemployment.

Poor planning can result in the foreign national losing hiswork-authorization status (possibly even legal status). Moreover the loss of akey employee because of visa issues can severely effect the launch of a productor the efficiency of a department. HR staff can prevent this from happening bykeeping the following in mind:

1. Track the expiration date of the foreign national’s workauthorization.

Upon hiring the foreign national, employers should record and track theone-year period of work authorization. By monitoring the employee’s workauthorization expiration date, HR staff can alert the foreign national well inadvance to the upcoming expiration date and the need to change status to aworking visa.

2. Consider the H-1B visa

Graduating students seeking to change their visa status have a couple ofvisa options available to them. However, the one most commonly used is theH-1B specialty occupation visa. The H-1B permits foreign nationals to continueworking for up to six years at the conclusion of their studies. Most graduateswill qualify provided they have a bachelor’s degree and will be filling atechnical position that requires a degree. Positions in Information Technologyusually satisfy the H-1B requirements.

3. Prepare paperwork early

Each year there are only a limited number of H-1B visas available. In 1998,65,000 H-1B were available, and H-1B petitions quickly exhausted this supply.Congress responded to the demand by increasing the number of available H-1Bvisas. For the fiscal year 2000, 115,000 H-1Bs were available. In spite ofthis, with the strong economy and demand for IT professionals, this supply wasquickly depleted.

Once the H-1B quota has been reached, the INS will not approve any moreH-1B petitions until the start of the next fiscal year. In light of this, itis imperative that employers interested in the continued employment of aforeign national assist with the preparation of H-1B paperwork as soon aspossible.

In previous years, before the H-1B cap became an issue, employers couldwait until the ninth month of the employee’s optional practical trainingbefore applying for an H-1B. Now, to prevent an H-1B petition from becomingsubject to the cap and held over to the next fiscal year, employers shouldapply shortly after hiring the individual.

4. Be aware of the employer obligations of the H-1B visa

H-1B regulations impose a number of obligations on employers. Part of theprocess requires posting labor condition applications informing otheremployees of the hiring of an H-1B worker. The employer must pay the foreignnational a salary comparable to the prevailing wage for the position in thearea of intended employment. HR staff must also prepare and maintain a publicaccess file that discusses the terms of the H-1B petition and details factorsused in determining the employee’s salary. Failure to comply with theselegal requirements can result in significant fines.

5. Examine permanent residency options early

For particularly valuable employees, companies may wish to assist with theforeign national’s permanent residency (a.k.a., "green card")application. While a variety of permanent residency options exist, manyforeign nationals with bachelor’s degrees apply for a green card throughlabor certification. This process requires that the employer show that nominimally qualified American workers are available to do the foreign national’sjob.

This arduous process can take several years given the large number ofapplications and the backlog at state employment security agencies. While theH-1B grants a six-year period of stay, labor certification can take up themajority of this time. To ensure the continued employment of the foreignnational, employers should take action early

U.S. employers are turning to foreign graduates frequently as a way to fillstaffing shortages. In spite of the paperwork involved, proper long-termstrategizing can minimize disruption to a foreign national’s workauthorization and ensure that staffing needs are met.

SOURCE: MyVisa.com, a national law firm practicing corporate U.S.immigration law for a global clientele.

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