Here’s another edition of “Ask Sophie,” the advice column that answers immigration-related questions about working at technology companies.
“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”
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Dear Sophie,
My STEM OPT expires in a month, and my company did not register me in this year’s H-1B lottery.
I’m not sure what options I have now. Help!
— Sleepless in Silicon Valley
Dear Sleepless,
I’m so sorry to hear that your employer didn’t register you for this year’s H-1B lottery! Things can feel similar for those who were not registered and their STEM OPT is expiring. Not to worry though! I’ve got you covered. But first, let me dive into a few things you should know, starting with your grace period.
Image Credits: Joanna Buniak / Sophie Alcorn (opens in a new window)
60-day grace period
You get a 60-day grace period when your F-1 STEM OPT expires. Please keep in mind that you cannot work during the 60-day grace period. This grace period is not to be confused with the 60-day grace period typically utilized by people in H-1B status.
The purpose of a student F-1 grace period is to give you time before you must depart the United States to either:
- Continue your education by enrolling in a new academic program at another institution and obtaining a new Form I-20.
- Apply to change to another nonimmigrant status for work or another purpose (USCIS recently clarified that it is OK look for a job in B visitor status).
- Apply for a green card through an adjustment of status if you are eligible and don’t plan to travel internationally.
- Wrap up your affairs, travel inside the United States and depart the United States.
Let me dive into some of the nitty gritty of this list:
Continue your education
The tech job market worldwide can feel tough right now. The number of people laid off in the tech industry so far this year has already surpassed all of 2022, according to Layoffs.fyi. In 2022, 164,511 people lost their jobs. So far this year, more than 183,000 people have been laid off in the tech industry.
Given this, you may want to consider continuing your education as an F-1 student by enrolling in a full-time degree program. Typically, curricular practical training (CPT) is available at some universities and colleges. CPT enables an F-1 student who has been enrolled full time for at least one academic year and has not yet graduated to work, but some programs offer “day-one” CPT.
Keep in mind that working for one year of full-time CPT (more than 20 hours of work per week) means you won’t be eligible for optional practical training (OPT). Working part time under CPT (20 hours per week or less) means you will still be eligible for OPT and possibly another two-year STEM OPT extension if your degree is on the U.S. Department of Homeland Security’s STEM Designated Degree Program List.
Change your status to visitor
If you need time to find an employer willing to sponsor you for a work visa such as an O-1A or a cap-exempt H-1B (more below), consider extending your stay in the United States by applying to change your status from an F-1 student to a B-1 business visitor.
With a B-1 visa, you cannot work, but you can do certain activities legally, such as looking for a job, participating in business meetings, attending networking events or building up your qualifications for an O-1A extraordinary ability visa. We have helped many people who were laid off change their status to a B-1 visa to give them more time to create their own startups.
The B-1 business visitor visa allows for a six-month stay initially and can be extended for another six months. USCIS recently clarified that you are allowed to look for work while on B-1 or B-2 status.
Work visa option: Cap-exempt H-1B
While the tech job market layoffs are grabbing headlines, many job opportunities still exist. According to a report by the Computing Technology Industry Association (CompTIA), a nonprofit trade association, the number of tech job postings in the top five tech categories, which includes software developers and engineers, systems engineers and architects, and cybersecurity analysts and engineers increased by 44,980 to nearly 181,000 in March.
Use and expand your network for job leads. Attend meetups and events in your field. Look at companies that are receiving grants or funding. Make sure to let prospective employers know early on that you will need a work visa. Knowing what visas you are eligible for and letting prospective employers know that will be helpful since employer sponsors are required for work visas.
Consider a concurrent, cap-exempt H-1B specialty occupation visa. This is one of the options that we often recommend to employers whose current or prospective employees were not selected in the annual H-1B lottery in March.
Here’s how concurrent, cap-exempt H-1Bs work: Certain employers are cap-exempt, which means they can submit an H-1B application on behalf of a current or prospective employee at any time during the year because they don’t need to go through the annual lottery process and are exempt from the 85,000 H-1B annual cap. These so-called cap-exempt employers include higher education institutions, nonprofits tied to these institutions, and nonprofit and government research organizations.
Cap-exempt employers, like cap-subject employers, can sponsor individuals for full-time or part-time jobs.
If an individual gets an H-1B through a cap-exempt employer for even a part-time position, a for-profit employer that would otherwise have to register the individual in the H-1B lottery can submit an H-1B application on that individual’s behalf without going through the lottery process and being selected. These are called concurrent H-1Bs.
We’ve had great success working with Open Avenues Foundation, which has a program that offers a cap-exempt H-1B to individuals in a STEM field to lead university students for about five hours a week in real-world, project-based work for your for-profit employer. You should know that for concurrent, cap-exempt H-1Bs, the for-profit employer is expected to pay the legal and filing costs for both H-1B applications so it’s a bigger financial investment for an employer.
Work visa option: O-1A
Another option is the O-1A extraordinary ability visa, which requires you to meet at least three of eight criteria, such as winning a national international award, which can include a Ph.D. scholarship or dissertation award or writing articles in your field or being the subject of articles published in professional, trade or major media publications.
The eligibility requirements for the O-1A are more stringent than for the H-1B but can offer much more flexibility and job security if you use an agent to file an O-1A petition on your behalf rather than a single employer. Using an agent offers flexibility and security because you can change or add paid jobs or projects in the United States without amending the petition every time as long as you continue to work in your field.
Check out this previous column in which I describe what it takes to meet each of the O-1A criteria in more detail. It is possible to meet them without working while maintaining F-1 status.
Work visa option: Country-specific visas
Depending on where you’re from, there are a few work visas for individuals who are citizens of specific countries:
- The H-1B1 specialty occupation visa is an H-1B earmarked for citizens of Chile and Singapore.
- The E-3 visa allows Australians to live and work temporarily in the U.S. if they have a “specialty occupation” that requires specialized theoretical or practical knowledge like the H-1B.
- The TN (Treaty National) visa enables individuals in qualified professions from Canada and Mexico to come to the U.S. to live and work temporarily.
In 2020, I founded Community for Global Innovation (CFGI), a nonprofit organization that helps international students reach the American dream and continue innovating in the U.S. by offering need-based financial assistance, connections to companies and legal counseling. Please reach out to us!
Best of luck on your continued journey to living your best, most fulfilling life in the United States!
— Sophie
Have a question for Sophie? Ask it here. We reserve the right to edit your submission for clarity and/or space.
Sophie Alcorn, founder of Alcorn Immigration Law in Silicon Valley, CA, is an award-winning Certified Specialist Attorney in Immigration and Nationality Law by the State Bar Board of Legal Specialization. Sophie is passionate about transcending borders, expanding opportunity and connecting the world by practicing compassionate, visionary and expert immigration law. Connect with Sophie on LinkedIn and Twitter.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!