July 14, 2017
Minsky, McCormick & Hallagan
What is Optional Practical Training (OPT)?
Optional practical training (OPT) is defined by federal regulations as “temporary employment for practical training directly related to the [F-1] student’s major area of study.” After completion of a course of study, most students on an F-1 visa are provided 12 months of OPT. Students who graduate in a STEM (Science, Technology, Engineering, and Math) field, are provided an additional 24 months if they are employed with an E-Verify employer.
What to do after OPT Ends?
The main issue for employees with OPT is how to continue work authorization beyond the 12 or 36 months of OPT provided. The vast majority of the time, they must find an employer to sponsor them for an H-1B work visa, assuming they do not also qualify for an alternative visa (see https://www.mmhpc.com/2016/04/h-1b-alternatives-h-1b-not-selected-annual-lottery-year/ ). The number of H-1Bs given each year, however, is limited; therefore, it’s likely that an individual working on OPT will not obtain the H-1B on his or her first try.
Can you start the Green Card Process while on OPT?
Because the H-1B visa is difficult to obtain, many employees then ask whether the employer should bypass this process and apply directly for his or her permanent resident status, or “green card”. For individuals from countries where there are currently more applicants than permitted by law, such as China and India in the EB-2 and EB-3 category, the answer will generally be “no.” This is because of the large backlog of green card applicants from those countries, often resulting in a wait of several years or more, before the employees from these countries can file their green card applications. Consequently, even if employers sponsor employees from these countries for green cards, they won’t receive them by the time their OPT expires. Once their OPT expires, these individuals could no longer remain in the U.S. without work authorization. Nor would they be able to continue their studies in the U.S. because they would have demonstrated an intent to remain in the U.S. permanently, which is not allowed under an F-1 visa.
It may make sense, however, for certain employees on OPT who are from countries other than China and India, to seek green card sponsorship from their employers. In these cases, the answer will depend on how much OPT the employee has used, whether the employee is eligible for a STEM extension, and the employer’s desire to have the employee work permanently for the company. If an individual has just started a 12-month OPT and has a highly motivated employer,the entire green card process could be completed within a year based on current processing times. If an individual is within the first year of OPT and also has a 24-month STEM extension available, then it would certainly make sense to begin the green card process, as long as the employer is motivated to complete the process in a reasonable amount of time.
If you have questions regarding whether you can and/or should start your green card process while working on OPT, please call our office to schedule a consultation.