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Chris Musillo on Nurse and Allied Health Immigration

ALTERNATIVE VISA OPTIONS TO THE H-1B PROGRAM, PART ONE: F-1

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by Anshu Anand

U.S. Citizenship and Immigration Services (USCIS) recently announced it received approximately 233,000 H-1B petitions for the 2016 H-1B CAP filing. This figure includes both regular H-1B cap-subject petitions and H-1B petitions filed for the advanced degree exemption. Not surprisingly, this is the largest number of H-1B cap-subject petitions ever received. From a numbers standpoint, we can expect about 36% of the H-1Bs will be accepted and 64% will be returned.

Since more than half of the petitions are returned, U.S. employers must seek alternative visa options to the H-1B program. In this three–part series blog post, we will discuss in detail the available alternatives. Each of these visas has specific legal requirements that the employer and employee must meet to qualify. The options discussed should be considered on a case by case basis, to determine the best fit for the employer and employee.

In the first blog of this three-part series, we discuss the options available to F-1 student visa holders including continued employment under STEM OPT or returning to pursue a higher degree.

Optional Practical Training (OPT) including STEM OPT

Optional Practical Training (OPT) is temporary employment that is directly related to an F-1 student’s major area of study. Under the current rules, an F-1 student can be authorized to receive up to a total of 12 months of practical training either before (pre-) and/or after (post-) completion of studies. Certain science, technology, engineering and mathematics (STEM) degree holders may be eligible for an additional one time 17 month extension of OPT time. To be eligible for the STEM OPT, the attained degree must be one of the STEM Designated Degree Programs (see STEM Designated Degree Programs) to determine if the degree is eligible and the employer must be registered with the government's "E-Verify" Program.

Higher Degree Level

An F-1 student can enroll in a new, higher degree-seeking program at a SEVIS certified university. Note that students may be authorized up to a total of 12 months of full-time practical training at each educational level (e.g., undergraduate, graduate and post-graduate). The student can also be authorized for Curricular Practical Training (CPT) at each new degree level. The CPT option should be exercised with caution and discussed by the student with the university’s designated school official. In a more recent trend, MU noticed the USCIS narrowly focus on F-1 students and whether the student maintained status during period(s) of authorized employment such as CPT.


In
the second blog of this three-part series, we will discuss the H-1B CAP exemption options including quota requirements, who qualifies and how some states have designed innovate ideas to take advantage of this option.

Read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com or www.ilw.com. You can also visit us on Facebook and follow us on Twitter.

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