I. Nonimmigrant Visas
1. F-1 Student Visa Work Authorization
CPT (Curricular Practical Training):
CPT is a type of work authorization that F-1 students may apply for while enrolled in school, typically for internships or other practical training opportunities that are an integral part of their curriculum. The application process generally involves securing an internship opportunity and submitting an application to the school’s international student office. Once approved, the student may begin working.
Under CPT rules, students may apply for CPT starting from the first day of enrollment or after completing the first academic term, depending on the school’s policies and the specific circumstances. It is important to note that if a student uses full-time CPT for more than 12 consecutive months, they will lose eligibility to apply for OPT.
OPT (Optional Practical Training):
OPT is work authorization that F-1 students may apply for after graduation. Students may apply before graduation or within 60 days after graduation, subject to applicable filing requirements and deadlines.
For students in STEM fields, OPT may be valid for up to three years in total (one year of standard OPT plus a two-year STEM extension). For non-STEM fields, OPT is generally valid for one year.
During OPT, the student’s employment must be directly related to their field of study. The student may begin working only after receiving an EAD (Employment Authorization Document).
2. J-1 Exchange Visitor Visa
The J-1 Exchange Visitor Visa is available to doctoral students, visiting scholars, and exchange scholars, and is designed to promote academic exchange and international cooperation.
J-1 visa holders may be subject to the two-year home-country physical presence requirement under Section 212(e). If subject to this requirement, they must generally return to their home country and reside there for two years after completing their J-1 program before becoming eligible for certain other U.S. immigration benefits, such as H-1B, L-1, or permanent residence.
Scholars can check the J-1 visa stamp in their passport to determine whether they are subject to the requirement. If they are subject to it, they must either fulfill the two-year home-country residence requirement or apply for a J-1 Waiver to have the requirement waived.
3. H-1B Work Visa
The H-1B is a common nonimmigrant work visa for international students and other foreign professionals seeking employment in the United States after graduation. It is generally subject to an annual numerical cap and a lottery, although certain categories of H-1B employment are exempt from the cap.
H-1B positions generally must be related to the applicant’s educational background and field of study and must qualify as specialty occupations, typically requiring at least a bachelor’s degree or its equivalent. The H-1B category also has specific employer-employee relationship requirements.
Changing Status from OPT to H-1B:
During OPT, graduates typically have one or two opportunities to enter the H-1B lottery. Applicants with one year of standard OPT generally have one opportunity, while those in STEM fields who receive the two-year STEM OPT extension may have additional opportunities.
Once an H-1B petition is approved, if the employee wishes to change employers, the new employer must file an H-1B transfer petition. In many cases, the employee may begin working for the new employer once the petition has been properly filed, without waiting for the petition to be approved.
In recent years, the H-1B selection rate has generally declined as the number of registrations has increased. Beginning with the FY2025 H-1B registration period, a beneficiary-centric selection system was introduced to reduce potential abuse of the registration process and improve the integrity of the lottery system.
The H-1B lottery is typically conducted in March or April, and a second or third selection may take place later in the year, depending on the number of available visas and the number of registrations received.
4. Other Nonimmigrant Visas
O-1 Visa
The O-1 is a nonimmigrant visa for individuals who have demonstrated extraordinary ability in fields such as science, arts, education, business, athletics, motion pictures, or television.
Applicants must demonstrate significant professional achievements or expertise and provide supporting evidence, such as awards, professional media coverage, and letters of recommendation from experts in the field, to establish that they have achieved a high level of distinction.
The O-1 category is not subject to an annual numerical cap, providing an employment-based immigration option for qualified individuals.
L-1 Visa
The L-1 is a nonimmigrant visa designed for multinational companies transferring executives, managers, or employees with specialized knowledge to the United States.
There are two categories:
L-1A is for executives and managers transferred to the United States to manage a U.S. office, subsidiary, or affiliate.
L-1B is for employees with specialized knowledge who are transferred from an overseas office to the United States.
Spouses of L-1 visa holders may qualify for L-2 status and may obtain employment authorization under applicable rules. The L-1 category facilitates the cross-border transfer of executives, managers, and key personnel within multinational companies.
TN Visa
The TN visa is a nonimmigrant work authorization category available specifically to qualifying citizens of Canada and Mexico. The employment must fall within an eligible professional category and generally be related to the applicant’s qualifications.
Compared with the H-1B, the TN category does not require participation in an annual lottery and can be renewed repeatedly as long as the applicant continues to qualify. It therefore provides a relatively streamlined pathway for eligible Canadian and Mexican professionals to work in the United States under the framework originally established by NAFTA and now continued under USMCA.
P-1 Visa
The P-1 visa is available to internationally recognized professional athletes and certain members of professional athletic teams. It allows qualifying athletes or team members to enter the United States to participate in athletic competitions and related activities.
R-1 Visa
The R-1 is a nonimmigrant visa for qualifying religious workers, such as ministers and priests. It allows eligible religious workers to perform religious duties or engage in qualifying religious activities for religious organizations in the United States.
II. Immigrant Visas
Immigrant visas provide a pathway to U.S. permanent resident status, commonly known as a Green Card. The major categories include family-based immigration and employment-based immigration.
Family-based immigration may be sponsored by U.S. citizens for qualifying relatives, including parents, spouses, and siblings. A common example is a marriage-based Green Card.
Employment-based immigration is based on employment or employer sponsorship and includes the EB-1 through EB-5 categories. The employment-based categories are described below.
1. EB-1 (First Preference Category)
EB-1A: Individuals of Extraordinary Ability
EB-1A is an employment-based immigrant category for individuals of extraordinary ability and does not require employer sponsorship.
Advantages: The category generally has a shorter waiting period and may be completed within approximately two years in many cases. Employer sponsorship is not required, and applicants may self-petition.
Application process: The process generally involves two stages. First, the applicant must satisfy at least three of the applicable evidentiary criteria, such as published scholarly articles, awards, high compensation, or participation as a judge of the work of others. Second, USCIS conducts a final review and evaluates the applicant’s achievements and qualifications as a whole.
EB-1B: Outstanding Professors and Researchers
EB-1B is available to outstanding professors and researchers. Employer sponsorship is required, and the applicant generally must have at least three years of teaching or research experience.
EB-1C: Multinational Executives and Managers
EB-1C is designed for multinational executives and managers and is closely related to the L-1 visa category. Applicants often enter the United States on an L-1 visa and later apply for EB-1C permanent residence.
Requirements: The applicant must establish a qualifying relationship between the foreign and U.S. companies, such as a parent, subsidiary, or affiliated relationship. The applicant must also have served in a managerial or executive capacity for both the foreign and U.S. companies as required by the applicable rules.
Advantages: As a first-preference employment-based category, EB-1C generally has a shorter visa-bulletin wait than EB-2 or EB-3, and in some cases the process may be completed within approximately two years.
2. EB-2 and EB-3 (Second and Third Preference Categories)
EB-2 and EB-3 are employment-based immigrant categories that generally require employer sponsorship.
EB-2 is commonly used for applicants with advanced degrees, while EB-3 generally covers professionals, skilled workers, and other workers.
The application process includes:
PWD (Prevailing Wage Determination): The employer requests a prevailing wage determination from the U.S. Department of Labor to ensure that the offered wage meets the applicable wage level for the position and geographic area.
Recruitment and job advertisements: The employer conducts required recruitment activities, including job advertisements, to demonstrate that there are no qualified and available U.S. workers for the position.
PERM Labor Certification: The employer submits the PERM application to the Department of Labor. Processing may take approximately 1.5–2 years, and cases selected for audit may take approximately 2–2.5 years.
I-140 Petition: After the PERM labor certification is approved, the employer files Form I-140 with USCIS. Premium processing may be available, with a decision generally issued within 15 business days for eligible cases.
Waiting for visa availability: Current EB-2/EB-3 priority-date backlogs may be approximately 4–5 years, depending on the applicant’s country of chargeability and available visa numbers.
PERM Labor Certification:
The employer must demonstrate that it has been unable to find qualified U.S. workers for the position and therefore seeks to employ a foreign worker. This involves a labor market test and a prescribed recruitment process designed to establish that there are insufficient qualified U.S. workers available for the position.
Labor Market Conditions:
In recent years, layoffs at major companies have made labor-market testing more stringent in some circumstances, although some employers continue to process PERM cases normally.
H-1B Extensions Beyond Six Years:
If an H-1B holder is approaching the six-year maximum period but the employer has already initiated the permanent-residence process and the I-140 has been approved, the H-1B may, under applicable rules, be extended in one-year increments until the Green Card process is completed.
Changing Employers:
If the I-140 has been approved and the I-485 application is pending, an employee may, subject to applicable portability requirements, change employers without restarting the PERM labor-certification and I-140 processes.
Otherwise, the new employer generally must restart the process by obtaining a new PERM labor certification.
NIW (National Interest Waiver) and Application Process
The National Interest Waiver (NIW) is a special pathway within the EB-2 category. It does not require employer sponsorship or PERM labor certification and is available to qualifying applicants with an advanced degree or exceptional ability.
The pathway can be particularly relevant to applicants in STEM fields. Under policies introduced by the Biden administration in 2022, certain STEM-related NIW cases may receive favorable consideration and priority processing.
Applicants generally must hold a master’s degree or higher, or otherwise qualify through a bachelor’s degree plus at least five years of progressive post-degree experience in the specialty, or qualify as an individual of exceptional ability.
Applicants must also satisfy the three-part test established in Matter of Dhanasar:
Substantial Merit and National Importance: The proposed endeavor must have both substantial merit and national importance.
Well Positioned to Advance the Proposed Endeavor: The applicant must demonstrate that they are well positioned to advance the proposed endeavor, with evidence such as publications, patents, awards, and other significant achievements.
On Balance, Waiver of the Job Offer and Labor Certification Requirements Would Benefit the United States:The applicant must demonstrate that, on balance, it would benefit the United States to waive the job-offer and labor-certification requirements, taking into account the economic or social value of the proposed work.
Approval rates have varied over time. In FY2022, the reported approval rate exceeded 95%. As the number of applications increased in FY2023, the approval rate declined, reaching approximately 76% in Q1/Q2 of FY2024.
3. EB-4 (Special Immigrant Category)
EB-4 is available to certain special immigrants, including qualifying religious workers and certain retired employees of international organizations, such as the United Nations or World Bank.
Advantage: Certain applicants may pursue permanent residence directly without going through the traditional PERM labor-certification process.
4. EB-5 Immigrant Investor Program
The EB-5 Immigrant Investor Program provides a pathway to permanent residence for foreign investors who make a qualifying investment in a U.S. commercial enterprise and meet the applicable job-creation requirements.
Under the current framework, the minimum investment amount for certain EB-5 investments is $800,000, and the investment period is generally approximately four to five years.
Policy Advantages
Regional Center Reform: The relevant legislation reserves a portion of EB-5 visa numbers for qualifying rural projects, high-unemployment areas, and infrastructure projects. Qualifying applicants in these categories may receive priority visa availability under the applicable rules.
Concurrent Filing: Eligible applicants may be able to file the I-526E immigrant petition and Form I-485 for adjustment of status concurrently. In appropriate cases, they may obtain an EAD and Advance Parole travel document within approximately 3–6 months, allowing them to work lawfully and travel internationally while their applications are pending.
Application Risks
EB-5 is an investment-based immigration program and involves investment risk. EB-5 investments are subject to applicable U.S. securities laws and regulatory requirements, including oversight by the U.S. Securities and Exchange Commission (SEC) where applicable. No investment project can guarantee 100% repayment of the investment. Applicants should therefore carefully select projects, evaluate potential risks, and ensure that the investment complies with applicable legal and regulatory requirements.
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