International Student Services
Immigration Attorney presentation with Matthew Stump, Esq.
November 4, 2011
Following are the questions that were submitted to Mr. Stump following his presentation, along
with the information he or Monica Sharp provided in response.
1. Can this presentation be made available on the OU ISS website? – Yes, ISS will make this
presentation publicly available on our website, www.ou.edu/cis/iss.
2. Is it possible to stay in the US for more than six years without declaring “intent to immigrate”
and while keeping my original citizenship? (ex: O-1 visa)
3. To obtain an immigrant visa, do I apply in the US or my home country? – Depending on your
circumstances, a US citizen or US company may petition for an immigration visa on your behalf
while you remain in the US or while you are abroad.
4. What types of visas are available for post-doctoral positions? - Depending on their
circumstances, post-doctoral fellows may work pursuant to any of the following visa statuses:
post-completion OPT (as an F-1 student), J-1 scholar, H-1B, or O. In addition, a marriage-based
immigrant visa (“green card”) permits unlimited employment.
5. I am marrying a US citizen and applying for a green card. What does this process look like? What
are some tips to make the process easier for me and my spouse? – Go to travel.state.gov and
www.uscis.gov for official information on this process. The office of International Student
Services maintains a basic information sheet for international students marrying US citizens or
lawful permanent residents; check with our office for more information. The Office of
International student services recommends the retaining a qualified immigration attorney for
assistance with the adjustment of status process through marriage to a US citizen.
6. If I am the owner of my own company in my home country, can I apply for the L-1? If I am a
manager in a company?
Yes, but there needs to be employees abroad that are managed.
7. If I wish to apply for an H-1B visa, what costs should I expect to pay?
The total cost for an H-1B varies from $825 to $5,000 depending on the size and type of sponsor
and whether the organization uses an outside immigration attorney. The employer rather than
the employee should pay all the base H1b filing fees and attorney fees.
8. If I wish to start a business on my own or in tandem with a US Citizen, how do I ensure my lawful
employment with that company?
By obtaining an H-1B or E-2.
9. If I wish to start my own company, what visa do I need to have? What if I were cofounder or had
a share in that company?
E-2 or H-1B.
10. I received an offer from a university for a J-1 visa, not an H-1B. If the H-1B cap (65,000 H-1B
visas per year) is not exhausted, why did they offer me a J-1 visa and not an H-1B? – A university
is a not-for-profit employer and is not subject to the age of the cap a 65,000 H-1B visas per year.
Although a not-for-profit employer can apply for an H-1B visa on behalf of a former employee at
any point during the year, there are many reasons as to why they may choose to not do so: cost,
simplicity, and speed. A J-1 visa costs the university virtually nothing to support, where an H- 1B
visa can cost thousands of dollars in attorney and filing fees. A J-1 visa is easily supported with
in-house staff on a university campus who can create and send the DS2019 to the prospective
employee abroad. Finally, the DS2019 can be created in a matter of days, without any input
from the U.S. Dept of Homeland Security, where an H-1B visa must be drafted, compiled, and
filed before it is even approved.
11. Does employment with a smaller company lower my chances of receiving an H-1B visa
compared to employment with a larger company? – No. However, the business culture of a
much smaller company may cause that company to be less willing to sponsor a foreign national
employees for an H-1B visa, due to a lack of familiarity with the process.
12. To get an EB-2 visa, how many articles in my field must I have published? – None.
13. How many times can I apply for an H-1B extension if my employer has Labor Certification
through Program Electronic Review Management (PERM)? – Indefinitely until the permanent
residency application is approved.
14. Can I use some of my OPT time after my H-1B is expired during the period when my second
application is in process? – No. Optional practical training is issued by the Department of
Homeland Security on a “use it or lose it” basis. If you have already changed visa status from a
student visa to an employment-based visa, you cannot recapture employment authorization
that was granted during the student visa period.
15. If I use my OPT period to start my own business in the US, can that business then sponsor H1-B
Yes, under the new entrepreneur visa guidelines.
16. I am on OPT, but my visa will expire soon. Do I need to renew it to maintain status? – No. An F-1
student only needs to renew a visa if he or she is traveling abroad and intends to reenter the US
from abroad in F1 status. If you intend to travel while on OPT, you must obtain a travel
signature on your form I20 prior to re-entering the United States. If you intend to remain
continuously in the United States in your F1 status while working pursuant to OPT, and do not
plan on traveling internationally at any point either during the transition from full-time student
status to OPT or while working under OPT, then you do not need to renew your visa to maintain
status or work authorization.
17. I am on OPT. Is it possible to visit my home country? If it is possible, for how long can I be gone?
– Yes. International students frequently travel internationally while on their OPT. You will need
to obtain a travel signature on your form I20 prior to reentering the United States. Caution:
time spent abroad on vacation while not working for your US employer under the terms of your
OPT may count against your 90-day limit on unemployment while on OPT.
18. If I am graduating in December, by what date should I have an employer? – We recommend that
international students begin their job search as soon as possible in advance of their anticipated
graduation date. Because your period of OPT work authorization can begin as late as 60 days
following graduation, and you are limited to 90 days of unemployment during your initial OPT
work authorization, the technical latest date by which you could begin employment with a U.S.
employer is five months following graduation if you selected the latest possible start date for
your OPT work authorization when you applied for OPT.
Questions about the J-1 visa subject to U.S. law, Immigration and Nationality Act, section 212(e).
Please refer all questions about the two year home residency requirement to the Office of International
student services. An employment-based immigration attorney will not be able to answer these
questions unless he has been specifically requested to do so on your behalf by U.S. employer.
19. How does the 212(e) law affect my J-1 after expiration? How do I get a job despite that law? –
the two year home residency requirement is a restriction placed on the J1 exchange visitor by
their home government, not the United States government. The purpose of the requirement is
to obligate exchange visitors to return home following the successful completion of their
program and contribute to their home country. If you wish to become professionally employed
in the United States following the completion of an exchange visitor programs, and you are
subject to the two year home residency requirement, you must either fulfill or waive the two
year home residency requirement before you can start implementing United States in an
employment-based visa category. In some cases, time spend abroad while an exchange visitor
can count towards the home residency requirement. Maintain careful records of significant
periods of time that you spent in your home country while you were an exchange visitor in the
United States: airline tickets, flight itineraries, boarding passes, receipts, bus and train ticket
stubs, and so forth can be useful in establishing the fulfillment of the two year home residency
20. If I find an employer before the required two years of foreign residence, is it possible to have the
212(e) requirement waived? – It is possible. It is useful to research in advance the waiver
application process. If a waiver of the two year home residency requirement is not approved by
the anticipated start date of the employment, then you cannot begin that employment.
21. If I am on a J-1 visa subject to 212(e), can I change to an H-1B visa? How? - If a waiver of the two
year home residency requirement is not approved by the anticipated start date of the
employment, then you cannot begin that employment.