A friend of mine asked me what a foreign student studying in
the US could do to stay if they have a job available or if they want to start
their own business.
Student visas (F, J, M) are temporary and dependent on being
enrolled in school full time. The duration of a student visa is based on the length
of the academic program that the student is seeking to pursue. An extension on the
student visa is not difficult to obtain however the foreigner needs to continue
to be enrolled in school to maintain his status. 8 CFR 214.2(f)
For student visas there are two different categories of
practical training that students can apply for that will extend their stay in
the US and allow them to work in the US. Curricular Practical training is
allowed during the course of study and it can be full-time or part-time. However
it could affect how much post-completion practical training they are eligible
for. 8 CFR 214.2(f)(10)(i)
The second type of practical training is Optional Practical
Training. With Optional Practical Training a student can receive a 12-month
extension to be completed within 14 months of the completion of a course of
study. If the foreign student graduated with a science, technology,
engineering, or math degree they can request an additional 17 months for a
total of 29 months. While a foreign student is completing their Optional
Practical Training they can apply for a change of status to an H-1B visa or a
permanent resident card through an employment based visa. 8 CFR
214.2(f)(10)(ii)
An H-1B visa is a temporary visa that allows an immigrant to
work up to three years and can be extended to six years. An H-1B visa is
designated for a person in a specialty occupation and is a temporary work visa.
Labor certification is not required but a labor condition application (LCA)
must be filed on behalf of the worker. The employer must pay the worker’s salary
and have an employer-employee relationship where they control the worker and
have the ability to hire, fire, pay, supervise, and in all aspects supervise
the employee. H-1B visas are capped at 65,000 each fiscal year. 8 CFR 214.2(h)
A student with the entrepreneurial spirit can start a
business and work while on Optional Practical Training. As long as the student is not unemployed for a
total of 90 days then they can be self-employed. (Ira J. Kurzban, Kurzban’s Immigration Law Sourcebook, 12th
ed. 721 (2010). However, if the entrepreneur wants to change status from
OPT to H-1B they need to have a partner or investors because the foreigner
cannot petition for himself. Id. at 746. In
order to petition for an H-1B visa, the petitioner must be a US employer who is
defined as someone who engages a person to work within the US, has
employer-employee relationship in that it may hire, fire, pay, supervise, or
otherwise control work. For purposes of visas for foreign workers,
self-petitioning owner is not an employee.
Id.
