Aires asked Bobby Bartle, our resident immigration attorney and Director of Immigration & Legal Affairs, about hiring Foreign National Students in the United States. He gave us an overview about the process of this growing trend below. The information contained herein is for informational purposes only and should not be construed as legal advice. Please consult professional legal counsel with respect to any particular issue or immigration matter.
A common method of hiring foreign nationals in the U.S. is via the recruitment of international students who are presently studying in the U.S. or who have just completed their studies. When this occurs, there are practical and strategic consideration an employer must take into account from the outset.
The first consideration is understanding how a foreign national student can obtain work authorization in the U.S. through their student status. Typically, this is done via a benefit extended to international students called Optional Practical Training (OPT). OPT allows international students to work in the U.S. in a field related to their studies for up to twelve (12) months. Typically, this occurs at the end of the student’s academic program; however, it can also potentially occur during the course of study.
The OPT process is carried out jointly between the student and their school’s international academic office. After working with the school, the student will apply for and obtain an Employment Authorization Document (EAD) – a document that states the validity of the authorized work period in the U.S. By presenting this EAD card, the student will be able to commence work with any U.S. employer. Remember, the initial OPT year is generally a process completed by the student and their school officials; however, it will take the employee about 90 days (approximately) to receive the card from the date of application, so if the student has a pending work opportunity then this timeframe should be considered.
Once the company hires the international student then a plan can be implemented to consider next steps in obtaining work authorization beyond the initial OPT time. One typical longer-term strategy is applying for H-1B visa status via the lottery that occurs annually each April. If selected in the lottery, and upon successful adjudication of the candidate’s H-1B petition, they will receive up to six (6) years in H-1B status. This allotment of time will allow the employer to then pursue green card options for the employee if they desire to do so.
In addition to the H-1B route, another temporary solution for a candidate might be a STEM OPT extension. This option is available to students who graduated with a STEM-related degree and have a job offer from an e-Verify enrolled employer. The extension is valid for a period of two years in addition to the initial OPT year (i.e., three years maximum). This two-year extension is critical because, not only does it extend the time in which a student can be employed in the U.S. after graduation, but it also allows them to remain in the U.S. and take two more “swings” at the H-1B lottery.
In sum, the critical element to consider when hiring or recruiting foreign nationals on U.S. campuses is the long-term employment plan. That is, will the job be filled temporarily, or could it turn into potentially a permanent and indefinite role? If the latter, an immigration strategy should be mapped out from the outset to make known the potential pitfalls, opportunities, and costs.