If you are a foreign student, fellow, trainee or intern in the United States, chances are you have considered remaining in the United States to pursue your career, even for the short-term. Many employers are not knowledgeable about visa options for talented applicants in whom they may be interested, but who need to change their visa status in order to remain in the United States. As soon as they understand that an applicant is not a permanent US resident, often called a “green card” holder, or a US citizen, they can be reluctant to go through the process of changing the applicant’s current visa status to one that is employment authorized. Following is some information as well as options that you and your prospective employer may find useful.

Optional Practical Training Period

If you are an F-1 visa holder who is graduating shortly, you can reassure a prospective employer on several fronts. First, you are entitled to an additional twelve months “optional practical training” (“OPT”) upon graduation from your academic institution. Also, if you graduated with a degree in certain majors, known as “STEM,” the acronym for science, technology, engineering or mathematics, you are entitled to an additional 17 months, totaling 29 months. There is no need for your prospective employer to interface with either the United States Department of Homeland Security or the United States Citizenship and Immigration Service, nor does this cost anything for you or the prospective employer for you to be “employment authorized” for either of these two time periods under the OPT. In fact, it is a good way for an employer to “try out” a qualified job candidate to determine if it wants to make a commitment by obtaining a nonimmigrant work visa or even permanent resident visa status. The OPT is implemented by a notation on the reverse side of your I-20 by your institution’s foreign student advisor authorizing the same.

Next Visa: H-1B

Before your OPT expires, your employer will have to make a decision as to whether it wants to continue to employ you. Generally, the most useful visa category to remain in the US upon expiration of the OPT period is the H-1B. The H-1B visa is intended for individuals in a so-called “specialty occupation”. A specialty occupation is a position requiring a minimum of a US bachelor’s degree, its foreign equivalent, or a combination of formal education and practical experience equal to the same. The H-1B is generally six years in duration and is a non-immigrant visa for which the employer, as petitioner, applies on your behalf. It is also a visa from which permanent US residence can be obtained. To reassure your prospective employer, you, as the prospective employee may legally offer to pay for the petition process with the restriction that the prospective employer must pay the anti-fraud filing fee. This fee is $750 for employers with less than 25 employees, and $1500 for employers with more than 25 employees. The rest of the application process and filing fees can be paid for by you as the beneficiary of the H-1B petition as long as the amount paid is not included to reach the minimum mandatory wage set by the North Carolina Employment Security Commission, a determination required before applying for the H-1B visa.

J Visa Possibilities

The J visa, also called an exchange visitor visa, can be used for internships and has many different durations of stay. For example, an internship or training is permissible for up to eighteen months unless the training is in agriculture and non-management hospitality and tourism, in which case it is limited to twelve months. Camp counselors, summer student workers may stay for four months and au pairs, who must be between 18 and 26 years of age, can stay for one year. Those receiving flight training can remain in the US for up to two years. Primary and secondary school teachers can stay up to three years. College and university professors and research scholars may stay up to five years. It is useful to note that if the professor or research scholar is participating in a program that is directly sponsored by a federally funded national research and development center or laboratory, the five year stay can be extended an additional five years. Medical interns or graduates may remain up to seven years. Additional time is accorded if one meets certain complicated requirements. However, as a general rule, extension of the above time limits are rarely if ever given.

Two Year Foreign Residence Requirement and Exceptions

Required by Section 212(e) of the Immigration and Nationality Act, some J visas carry the imposition of a two year foreign residency requirement once the authorized stay in the US is over. The following J-1 visa holders may be subject to foreign residence: recipients of US graduate medical education or training; J-1 visa holders whose program in the US was financed, in whole or in part, by the US government or the government of the J-1 visa holder’s home country; and J-1 visa holders whose skills appear on the Department of State’s Skills List. A loan by the home country’s government is considered to be financing and will subject the J-1 visa holder to foreign residence. The United States Department of State maintains a list called a Skills List for countries where certain skills are in short supply. As a result, most industrialized countries do not appear on the Skills List. If the J visa holder is from a country listed and has the skills listed for that country, he or she must return to that home country or country of last residence for two years. Two years’ residence in a third country, Canada being a popular choice, does not qualify as foreign residence.

Repeated J-1 program participation or moving from one type of J-1 visa status to another status, such as an F-1 visa student visa holder to a J-1 research scholar results in a one year foreign residency requirement, unless certain exceptions are met. J-1 interns may, however, participate in a second internship program if begun within twelve months of graduation. Once that internship program is complete, the two year foreign residency requirement, if applicable, applies if the intern wants to return to participate in a training program. A J-1 trainee may participate in another J-1 exchange program if specifically intended for medical interns, professors and teachers.

Sometimes the consular officer issuing the J incorrectly inserts a foreign residency requirement. If you as a J-1 visa holder feel there has been an error, the United States Department of State is willing to issue an advisory opinion upon request.

Lastly, a J visa holder normally subject to foreign residence can always return immediately to the United States in O-1 visa status, which must be accorded at a US Consulate or Embassy if first approved by the United States Citizenship and Immigration Service. This visa is renewable indefinitely but reserved for individuals demonstrating “extraordinary ability” and usually sustained recognition in the sciences, arts, education, business or athletics. It is frequently premature in a graduate’s career to qualify for an O visa, but each case much be considered individually as certain awards, inventions or patents can qualify one for an O visa.

Dependents of J-1 visas who are in the US on J-2 visa status are also subject to the two year foreign residency requirement that is imposed on the primary J-1 visa holder.

Special Issues Related to Medical Doctors on J-1 Visas

To be subject to Section 212(e)’s two year foreign residency requirement, a medical doctor on a J-1 visa must be providing direct patient care. Usually a good rule of thumb is that if a J visa is issued under the auspices of the Educational Commission on Foreign Medical Graduates, it will be subject to the two year foreign residency requirement unless the fellowship is non-clinical or research-related. Physicians subject to the two year foreign residency requirement who wish to avoid the two year foreign residence requirement, and who are willing to work in medically underserved areas, should consider applying with the Appalachian Regional Commission or state health department under a Conrad Program. Extended recently until July 9, 2012, the Conrad Program allows state health departments to sponsor up to thirty foreign physicians per year, who would be otherwise subject to the foreign residence requirement, in order for them to provide primary care in medically underserved areas in the United States. A medically underserved area is so designated by the US Department of Health and Human Services. Other areas with significant populations on Medicare or Medicaid and an indigent uninsured population may also qualify. The physician participating in most of these programs must commit to three years, but some states, including North Carolina, impose a four year commitment. This state’s program is administered by the North Carolina Office of Rural Health and Resource Development.

Other Grounds for Waiver of Foreign Residence for J-1 Visa Holders

There are a number of other ways to qualify for a waiver of foreign residence for J-1 visa holders, including those who are not physicians. For a scientist or engineer, the National Science Foundation is a resource for locating positions that qualify for a waiver of foreign residence. Any J-1 visa holder, including a physician, also has the option of proving that to return to his or her home country would result in “exceptional hardship” to him or his immediate family. The J-1 visa holder can also obtain a waiver by proving that he or she has a well-founded fear of persecution in his or her home country based upon nationality, race, religion, political persuasion or because of membership in a certain class or social group. Finally, the government of the home country of the J-1 visa holder can write a no-objection letter to the United Sates Department of State, advising that it has “no objection” to the J-1 visa holder remaining in the US. However, the “no-objection” letter option for a waiver of foreign residence is unavailable to physicians who participated in clinical work sponsored by the Educational Commission on Foreign Medical Graduates.

Update Relating to SEVIS

In the spring of 2010, the Student and Exchange Visitor Information System, known as SEVIS, in which all foreign students must be registered, will become totally paperless for both F and J visa holders. Known as SEVIS II, all information about a student in SEVIS will be migrated to the new system. Registrants will now be able to access their accounts which will indicate whether a student or exchange visitor is employment eligible.