In today’s interconnected world, you might find yourself in a situation where you would like to hire an international professional, or you yourself may be a foreign national wishing to start and run a company here in the U. S. Although no immigration status is required to start a company, to actually work (even as your own company’s manager), you need to have work authorization.
Be advised that a non-permanent resident alien shareholder will cause a Subchapter S corporation to become a C corporation. Please refer to our article discussing the differences between these kinds of corporations (link to Selecting the Right Entity Type for Your Business).
In this article, we will explore the most popular immigration status options for temporary employment in the U. S. For temporary work visas available to citizens of specific countries with which the U. S. has immigration treaties, please refer to our article (link to Employment Paths in the U.S. (Country-Specific)). For permanent resident (green card) options, please refer to our article (link to Green Card Options for International Business Owners and Professionals).
F-1 Student Visa
F-1 status is granted to students planning to study in the U. S. In limited circumstances, this status allows certain employment.
On-campus employment
F-1 students are allowed to work on campus during their studies, as long as their employment does not exceed 20 hours per week when school is in session. An example of an on-campus job could be working as a research assistant, barista, or a store clerk (if located on campus). Some universities have business incubators, and working for the startups based there may count as on-campus employment. The student must notify a designated school official (DSO) before beginning work. No USCIS authorization or notification is required.
Off-campus work may also be authorized by the USCIS on a case-by-case basis in the event of confirmed financial hardship after at least one year of studies or emergent circumstances such as financial crises, natural disasters, and wars.
CPT (Curriculum Practical Training)
CPT applies in cases where practical training is required by the curriculum.
In planning your studies, be mindful that one year of full-time (20+ hours per week) CPT eliminates Optional Practical Training (OPT) eligibility at the same educational level (Bachelor’s, PhD, etc.). Part-time or less than one year of full-time CPT do not affect OPT eligibility.
OPT (Optional Practical Training)
OPT is an optional extension of the F-1 student status that allows individuals to obtain practical experience in occupations directly related to their area of study. Freelance work or self-employment are allowed, as long as they relate directly to the area of study and are reported through the Student and Exchange Visitor Program Portal.
The maximum duration of OPT for non-STEM (science, technology, engineering, and mathematics) majors is one year for every higher education degree level.
One can apply for OPT through their university. No job offer is required to apply, and no salary is required to maintain the status. During the regular one-year OPT, the maximum allowed unemployment period is 90 days.
F-1 status holders can work on OPT both before and after graduation (although the latter is more common). Time worked on part-time pre-completion OPT at the same educational level is deducted from the one-year total authorized OPT duration at a 50% rate. Full-time pre-completion OPT is deducted at a 100% rate.
For example, Anna worked 7 months part-time and 1 month full-time on a pre-completion OPT. She now obtained her degree and has (12 – 750% - 1) = 7.5 months left on her OPT to work after graduation.*
Post-completion OPT requires working at least 20 hours per week.
OPT is not employer-specific, so working for several employers and changing employers is allowed. As a practical matter, if one wishes to continue a career in the U. S., it is advisable to work for an employer who, down the line, would be willing to sponsor them for another immigration status in case of a good fit.
STEM OPT
STEM majors can take advantage of two one-year extensions of the OPT. A complete list of fields that fall within this definition – the STEM Designated Degree Program list – can be found on DHS website.
STEM OPT extensions must be paid, and the employer(s) must be enrolled in E-Verify. The maximum period of unemployment is 60 days (in addition to the 90 days allowed under the regular OPT).
H-1B
The H-1B status is available to (prospective) employees holding positions requiring at least a Bachelor's degree in a specialty occupation or to fashion models of distinguished merit. It is employer-specific, but an individual can have several concurrent H-1Bs from different employers or switch employers (provided that each one of them submits paperwork with the USCIS). The H-1B status lasts for three years and can be extended for the same period (six years in total). Any time not spent in the U. S. (for example, when traveling to see family) can be requested to be recaptured.
For an H-1B status, there must be an employer-employee relationship between the beneficiary (the employee) and the petitioner (the employer), which means that the employer must have the power to hire, pay, fire, supervise, or otherwise control the work of the employee. This is why the H-1B status is not an optimal option for business owners. In rare cases, a founder may be sponsored by the company they themselves created, but there must be a certain control structure in place over them (like a board of directors or a supervising manager).
To qualify for the H-1B status, an employer must pay the H-1B employee at least a prevailing wage, which is basically a market wage and depends on the specialty occupation and the job location. See the Bureau of Labor Statistics prevailing wage data here.
There are cap-subject and cap-exempt H-1B employers.
Cap-Subject Employers
Most employers are cap-subject. Each year, there are 85,000 H-1B visas available, including 20,000 visas reserved for the holders of U. S. advanced degrees. Since the demand (absent a recession) for the visa is usually higher than this numerical limit (cap), the first step in the application process is a lottery conducted annually in March. Employers can register their employees in the lottery using their MyUSCIS accounts from the U.S. Citizenship and Immigration Services. Employers of the selected registrants will then have the opportunity to file petitions for them until the end of June.
Most H-1B visas become effective on October 1 of each year. As a practical matter for someone transitioning from the F-1 to the H-1B status, make sure to file the H-1B petition before the F-1 status expires and request a cap gap extension in the Form I-129 to ensure the beneficiary’s seamless transition to the new status and continuous employment authorization.
Cap-Exempt Employers
Universities and related nonprofit entities, nonprofit research organizations, and government research organizations are exempt from the cap and the lottery. These employers can submit an H-1B petition to the USCIS at any time during the year without concern for the fiscal year limit. However, to switch from a cap-exempt to a cap-subject employer, an H-1B status holder must be selected in an H-1B lottery first.
O-1: Individuals with Extraordinary Ability or Achievement
The O-1 nonimmigrant visa is for an individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements. This visa is a great option for entrepreneurship, but the qualification threshold is high.
This visa is intended for beneficiaries who are coming temporarily to the United States to continue work in the area of their extraordinary ability. The O-1 status is good for 3 years initially but may renewed indefinitely for additional 1-year terms. One of the advantages of this status is that there is no numerical cap or restricted time windows to apply. An employer (could be the beneficiary’s own company) or an agent must file a petition.
Extraordinary ability in the fields of science, education, business or athletics can be proven by evidence that the beneficiary has received a major, internationally recognized award, such as a Nobel Prize, or at least three of the following:
- Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
- Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field;
- Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought;
- Original scientific, scholarly, or business-related contributions of major significance in the field;
- Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought;
- A high salary or other remuneration for services as evidenced by contracts or other reliable evidence;
- Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought;
- Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.
Acceptance into a selective business incubator may be used in a showing of awards.
L-1 Intracompany Transfer
L-1 status is an optimal option for managers, executives, and professionals with specialized knowledge transferring from a foreign company to its U. S. branch. To qualify, the beneficiary must have worked for the employer at least one year in the last three years before admission to the U. S. The L-1 status can be sought to establish a foreign company’s new office in the U. S.
The L-1 status lasts for three years initially and can be extended for two additional two-year increments (for a total of seven years). An advantage of this status is that there is no limit on the number of visas available each year.
Takeaways
There are various ways to obtain a temporary work authorization in the U. S. In many cases, an individual can change their immigration status and remain in the U. S. legally. To consider all your personal circumstances and develop the immigration strategy that works the best for you, please contact us.
