Students: Is There an Alternative to the H-1B Visa?

In my years as an immigration attorney, I’ve had the pleasure of working with a great many international students and their families. Unfortunately, I know firsthand that international students face an uncertain future. There are various immigration options for foreign students to continue living and working in the United States after they graduate, but in general they present significant downsides. The EB-5 Immigrant Investor Visa is—as far as I’m concerned—the only exception to this rule. In this article, I’ll briefly discuss the treacherous path that a great many foreign students take in order to extend their stay in the United States: F-1 Student Visa Optional Practical Training (OPT) followed by an application for an H-1B visa. I’ll then compare this path to the EB-5 visa, and explain why it offers an extraordinary opportunity for students whose families can make the required investment.

Optional Practical Training can be a great option for foreign students. Although the F-1 Student Visa generally prohibits students from working while in school, the OPT program allows students to work in the United States for the purpose of gaining professional experience in their field of study. The most obvious downside of OPT is its duration—it only allows for an extended stay of one year. As one would expect, a great many students want to continue working for their employer and living in the United States after the year is up. Often, students pursue this goal by applying for an H-1B visa. Successfully obtaining an H-1B visa is an outstanding outcome for foreign students. Because it is valid for up to six years, it is extremely popular—so popular, in fact, that the government has placed an annual limit on the number of available H-1B visas, often called the “cap gap.” Although 85,000 sounds like a big number, nearly every year, all available H-1B visas are granted shortly after they are made available, which makes timing critical in the application process. The H-1B visa provides a number of other hurdles as well. It can be extremely difficult to find an employer who is willing to go through the costly and time-consuming process of sponsoring the student, especially in today’s hyper-competitive job market. A failed H-1B application leaves the foreign student with few options.

If the difficulties of finding an H-1B employer were not enough, students face the limited availability of H-1B visas. Regrettably, at this writing, Congress has not addressed the need to increase the H-1B cap to accommodate the needs of both American business and of highly qualified students seeking jobs. USCIS’s current solution to the H-1B shortage is an annual lottery. The lottery is not based on merit or any other factor – only numbers. The result is that over 40% of the qualified applicants do not even get a chance to get their H-1B application considered. This uncertainty is an unfair burden on students and as of this writing, no solution is in sight.

The popularity of the EB-5 program has absolutely exploded in the last couple of years, and it’s no secret why. It offers, not a temporary visa, but a US Permanent Resident Green Card for investors, as well as for their qualifying immediate family members. The EB-5 program is rarely thought of as an option for international students—the average immigration lawyer may not even mention it as a possibility. Since qualifying for an EB-5 Green Card requires the student or parents to make a significant investment in the American economy, many families may be unable to afford it. But for those of my clients who can make the required investment of $500,000, I almost always recommend it as a viable option, if not the best course of action. The benefits of an EB-5 Green Card are the greatest for families that apply for the visa program before their child begins higher education schooling in the United States, since it allows them to pay the same tuition as American citizens. International tuition, as all foreign students know, is higher—often brutally so—than it is for their domestic counterparts. Even better, having a Green Card also allows the student to establish legal residency in any state before enrolling. As a state resident, students pay significantly less in tuition than domestic students from other states.

After examining these two paths to living and working in the United States, the pros and cons to each are quite clear. If you are hoping to attend college in the US, or want to continue your professional career after graduation, the EB-5 Green Card may be the best choice for you. To learn more about the EB-5 Investor Visa program, call us today at 415-221-2345. 

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