Student Visas and Employment Matters (Part 2 of 2)
Posted Apr 13, 2007; updated May 27, 2008
[See also, Part 1 of this NewsBrief.]
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This is the second of our two-part article on the subject of employment as it relates to those in student status. Here we provide some additional information on J-1 students, as well as the transition from student- to employment-based immigration statuses. Part I of this article addressed employment matters relevant to students. In particular, some of the differences between F-1, J-1, and M-1 student employment options were addressed. [Part I of this two-part article, Student Visas and Employment Matters (Part 1 of 2), from April 6, 2007, is available on MurthyDotCom.]
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J-1 Student Academic Training
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Academic Training (AT) is employment related to a J-1 student's field of study. While there are many similarities between employment options available to the F-1 student and AT available to J-1 students, there are also differences, in many respects.
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Unlike F-1 employment options, AT can only be authorized for work related to one's course of study. AT is permitted during the course of study as well as after completion of the program. No authorization from the USCIS is required. Instead, the J-1 student should be authorized for work by the Responsible Officer (RO) or Alternate Responsible Officer (ARO) at the school s/he is attending. Students in undergraduate and pre-doctoral programs are permitted an overall limit of 18 months of AT. If the academic program is shorter than that, then the AT would be reduced so that it does not exceed the total length of study.
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For post-doctoral J-1 students, AT is a maximum of 36 months, which includes all earlier periods of academic training authorized either prior to or following graduation. Again, the total training period may not exceed the period of the student's full course of study. Another important distinction is that all AT, whether authorized for full time or part time, is counted as full time. Post-completion AT should commence no more than 30 days after completion of the student's studies.
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Student Post-Completion Training
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We at the Murthy Law Firm receive many questions from students whose prospective employers petition for H1B status on their behalf following completion of these students' F-1 status. This situation may present many difficulties due to the nature of H1B employment subject to annual limitations.
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Students in F-1 status have 60 days after the completion of the F-1 program of study to remain legally in the U.S. Individuals in J-1 status have only a 30-day grace period before they either need to leave the U.S. or extend their studies. The same considerations, however, apply to them with respect to the transition to different statuses, as outlined below.
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Transition from Student (F-1 or J-1) to Employment Status
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As regular MurthyDotCom and MurthyBulletin readers know, the new H1B cap year for which one may apply begins on October 1st each year. The filings are accepted six months in advance, on April 1st. If a student completes his/her study or F-1 OPT, s/he is allowed to stay in the U.S. for an additional 60 days. The sixty days are counted after either the date of graduation or the date the OPT expires (30 days only for J-1s, as stated above). Many students graduate in May and obtain OPT that is valid for one year, from June or July to the following June or July. This created what was known as a "cap gap" for many students, when no status permitted them to remain in the U.S. until their H1B start date on October 1st. Students caught in this situation either had to depart the U.S. during the gap period, or figure out a way to bridge the gap.
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Fortunately, on April 8, 2008, the USCIS published an Interim regulation that provided cap gap relief. The details can be found in our April 9, 2008 article, F-1 OPT Interim Final Rule of April 8, 2008 - Summary and Analysis. This should ease the transition from F-1 to H1B for many foreign nationals.
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If the H1B petition is approved for change of status within the U.S., one's status will automatically change to that of H1B on October 1st, or whenever the start date may be. No visa stamping in the passport is required at the consulate if the USCIS has approved the change of status with the tear-off I-94 card, attached to the bottom of the H1B approval notice, to complete the change-of-status process.
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Miscellaneous Issues for F-1s, J-1s, and their Dependants
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While employment options are one of the most important differences between various student statuses, there are some other considerations that one should take into account when deciding which status to pursue. For example, J-1 status provides for certain non-degree educational programs that are not available to F-1 students. Also, students who are self-funded or funded totally or for the most part by family funds are ineligible for J-1 status.
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J-1 students are required to obtain and carry health insurance for themselves and their dependents, while F-1 students are encouraged but not required to do so. J-2 dependents are eligible to apply for work authorization, while F-2 dependents may not work under any circumstances.
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One of the most important considerations to keep in mind is that individuals in J-1 status are often subject to the two-year home country residency requirement. There is no such requirement for F-1 students. This should be fully investigated and considered before accepting J-1 status. One should subject him/herself to the two-year home residency requirement only if s/he is willing and able to make that commitment. While there sometimes are waivers available, it should not be assumed that one will be able to obtain a waiver from the two-year requirement.
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[See also, Part 1 of this NewsBrief.]
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