Transcript:

Narrator 

Welcome to Immigration Nation, the podcast that dives deep into the complex and often misunderstood world of United States immigration. Through interviews with leading US immigration Attorneys, this podcast aims to provide a comprehensive overview of the policies, struggles and victories within the ever changing world of immigration. Each episode will offer fresh perspective and valuable insight using real life stories to navigate our nation’s immigration system. If you have an immigration question or an existing case, join us here on immigration nation because this podcast was made for you. 

Kleinee Powell 

Hi everyone. My name is Kleine and I’m joined today by Mr. Garry Davis. Today, we’re going to be going over some frequently asked questions about the F1 student visa. So let’s jump into it. 

Speaker 

So. 

Kleine Powell 

The F1 student visa may sound like a simple process, but there are definitely some important factors that go into it to make sure that your petition isn’t denied. Is that correct? 

Garry Davis 

It is so a student visa is basically a temporary visa or what we call in the business. A non immigrant visa as opposed to immigrant, which would be somebody that wanted to stay on. A. Permanent basis. So you’re telling the government by coming on an F1 student visa that you’re planning to come here, get your education, and then leave at the end of your stay. Whereas the the immigrant process or the green card process is a different intention, right? It’s the intention to stay on a permanent basis and live here, make a life here, right? It’s family here, work here. Those kinds of things. So those are a little bit different from each other. But there are certainly paths that lead from the student visa into permanent residence. If that’s a goal for someone who’s come here. As a student. 

Kleinee Powell 

So it may be a bit more challenging than the average adjustment of status, correct? If somebody were to go on that path from the student visa to something else. In United States immigration. So what are those sorts of different pathways? 

Garry Davis 

There’s lots of different ways you can do it, but it’s going to vary individual to individual what those options might be. For example, the most common path would be to change over to a work authorized visa, for example, an H1B work visa, and then move from that through an employment sponsorship situation into permanent residence. That’s. Referred to as an EB2 or an EB3 type visa, depending on the education level and the experience. So that’s one. Obviously there are family options. For example, you know people come here on a student visa and they meet someone they fall in love, they decide to get married. And so there is a path through marriage, whether it’s through a marriage to a permanent resident or a U.S. citizen that could lead to like a family option for becoming a permanent resident here, if someone comes and. Perhaps they’re doing a pH. D for example, and they have established themselves as outstanding in their. Field there is an 01 outstanding or extraordinary ability visa for someone who’s kind of reached that high. Level. And has some international recognition and then you can pivot that into an extraordinary ability green card as well, which is called an EB1A. Or for, you know, PHD’s academics that are doing research at a high level or outstanding teachers in the country, there’s an EB1B. So those kind of extraordinary ability paths are available. If someone has come here with a very high net worth, they have a lot of cash. They wanted to come do a masters degree, for example, but they’re independently wealthy and they have, say, $1,000,000 cash that they could invest in the US. There is an EB5 green card that’s a pathway to permanent residence. As an investor into a company or into an investment bank called the regional Center here in the US to create jobs and stimulate the economy with that cash injection or invest. And so those are those are basically the paths that you would be able to to follow family extraordinary ability, employment, sponsorship or investment would be the typical paths. The last one I’ll mention briefly here is that if someone has come from a country where there are particular challenges or concerns about persecution. Because of political opinion or religious beliefs or sexual orientation or something like that, then there is an asylum path as well that would allow someone who’s here on an F1 student visa to seek protection from the EU. Government so that they don’t have to return to a country where they would have those risks of being harmed or persecuted because of one of those protected grounds. So those would be the the paths that I. Could think of. 

Kleinee Powell 

Right. So for those of you listening or watching, we just did a video on the K1 fiance visa. So I’d like to ask for that option. So marrying a U.S. citizen or a green card holder. So how would someone adjust their status through that option? 

Garry Davis 

Kleinee Powell 

Hmm. 

Garry Davis 

Even while you’re still a student, or perhaps at some point in the past you stop being a student and are even here in the country without legal status. If you were to marry a resident or a citizen in the United States, then you file an application for permanent residence from here. And basically it’s, you know, for spouses of citizens in particular. It’s a one step process where the citizen files a petition. Does a financial sponsorship. As well, the F1 student would file a green card application that would be processed by US immigration, the USCIS, and then it leads to work authorization through that application process, travel authorization as well so they can travel out of the country without the need for. A. Visa, eventually an interview with the immigration authorities where they’re going to test. Basically, background financial fitness of the sponsor because there is a financial sponsorship component there and then the marriage to see whether or not it’s actually a legitimate. Marriage. And that’s the biggest thing there is. As long as the intention is to be together in a relationship and to make a life together. And not just to get a green card or a business transaction or something like that. Then then, chances are it’s going to workout just fine. In the end, it’s a relatively short process. Typically here in at this time in Dallas and Houston, we’re seeing about a 15 month turn around from submission to completion. So it’s not terrible and the work and travel permits come along the way so that you’ve got that flexibility to work anywhere that you’d like to, including for yourself. 

Kleinee Powell 

Garry Davis 

Have your own company and then traveling out of the country without the need for a visa, so there’s huge benefits there. And when you’re married to an American citizen, the other benefit is once you become a permanent resident, it’s only three years to your eligible to file for US. Citizenship. Ohh. Wow. Yeah. So it’s a path to actual citizenship that you want to plan for, you know, from the beginning when you get. 

Kleinee Powell 

Into the relationship, so there’s probably a couple of things to be careful of, of what, that option, right? 

Garry Davis 

Yeah, the biggest 1 is just the the relationship has to be legitimate, right? There’s historically, you know, there’s even movies about this, a movie called Green Card from Back in the day, for example, that’s that’s pretty funny. But basically, you know, if you’re trying to scam the government and use this as a path to. You know to permanent residents by fraud. You want to stay away from that? I mean, the government, they do this for their career, for their living as an agency and all the employees there are very committed to protecting the US country, right, affecting the whole. Country. And and so they’re they’re very vigilant about watching. For for fraud and things like that. So as long as the relationship is legitimate, that’s the most important thing. Some other things to lookout for are the financial sponsorship part that I mentioned. If if someone is sponsoring for permanent residence through a marriage relationship. As I mentioned earlier, they have a financial sponsorship obligation and so if they’re not working or if they’re disabled in some way or if they don’t have sufficient assets or income to qualify as a sponsor, then you could run into some trouble because immigration doesn’t want to give someone a green card, who’s then going to become dependent on the welfare system. Right. And they’re very concerned about that and and protective of of that system. And so as long as they’ve got sufficient income or assets, we’re OK there. It’s just a math question. But if they don’t, then that could be a challenge that needs to be addressed, perhaps with a a Co sponsor of some kind, someone that steps in to help support the application, who’s not the actual sponsor. For the green card. Or we can sometimes in some situations use the income or assets of the person being sponsored. For example, if they have work authorization through their student status, which sometimes you can get. And they have an income themselves, and it’s a marriage relationship to a U.S. citizen. We can use that. The income of the person being sponsored to actually qualify for the financial sponsorship piece. So those are the two marriage fraud and the financial sponsorship are the big ones. And then the last one would just be background. There is a very extensive background check that’s conducted on each applicant for permanent residence. 

Kleinee Powell 

Oh wow. OK. 

Garry Davis 

Kleinee Powell 

Mm-hmm. 

Speaker 

No. 

Kleinee Powell 

Yeah. So what about our other options? There was a business option that students and students are, you know, typically driven. So it’s, you know, probably they want to start their own business or maybe join a business. So could you talk about that option? 

Garry Davis 

Sure, it’s it’s a little more complex than the marriage option, but I’ll do my best to unpack it in in a way that people can can process. Yeah, I can geek out on this stuff sometimes, right? This is my thing. So. 

Kleinee Powell 

Thank you. I know you can. 

Garry Davis 

So basically there’s a couple of different paths and it all depends on the net worth of the individual that’s being sponsored. As I said before, some people that are here as students are already established financially somewhere in the world or they have a family that is very well off and so they’re able to afford the education here, which is very high quality, especially when you get to the to the college level. 

Kleinee Powell 

Sure. 

Garry Davis 

University level. And so if they’ve got access to enough cash. And if they have nationality from certain countries, there’s a couple of different paths. So we’ll start with moving from a student visa to what’s called an E2 investor visa. There is a list of countries that the State Department keeps that the United States has a Treaty of commerce, friendship, you know, economic exchange, whatever they call it. Some notable examples are most of Western Europe, Japan and South Korea. Jordan has a treaty, the Pakistan and Bangladesh. Notable exceptions are China and India, which do not have those treaties with. Us. Which to me is a little bit surprising, but I think when you consider the population size of those countries, it could be somewhat challenging for us to absorb. You know, that many people that would potentially qualify for it, but. 

Kleinee Powell 

Hmm. 

Garry Davis 

But anyway, if your country of nationality is on the. List. And if you’ve got, we say, at least $100,000 US that you’d be willing to invest. Oh, wow. You buy a business here and could switch over from an F1 student visa to an E2 investor visa and run your own business. Now, by itself, that scenario allows you to pivot out of the F1 student and get into a situation where you can have your own business and run your own company. Here but it doesn’t have a built in pathway to a green card. There’s other ways to get there and I’m sure we’ll. Have. An episode on that at some point, but just know that if you’ve got access to that kind of cash, then you may be able to pivot out of the F1 student visa and switch over to the E2 investor visa option and have your own company here. And continue going to school if you. Wanted to do that by the way. But if you had some a higher net worth if you had access to, you know, closer to $1,000,000 in cash, which obviously not a lot of people do, but some people do, then you could go down what’s called the EB 5 route and EB 5 is basically you make an investment into a company. And you have to show that that investment is going to grow. Wow. The number of employees a net new jobs of 10 full time. Within a two year time period. Wow. Yeah. So if you’ve got the cash and you want to invest it in this way, then EB 5 is a good option. There’s two different paths there as well. One is through what’s called the regional center, which is kind of like an investment bank. I guess they they basically have some deals that are coming in that people can invest in funds that they put together to raise money. Capital to to do usually real estate development projects or business expansion projects, something like that and basically. You give you give them your cash, they sort of become a sponsor for the EB5 Green card and then and then they are kind of holding all the responsibility for the job creation and and typically these funds are going to range from, you know, anywhere from maybe 10 million to $50 million, something like that. As a fraction or a portion of the total, you know funding of this development project. Typically you’ll see this in revitalization projects and in urban areas and. Like that, where things have gone into disrepair and decay, they’ll buy up a big area of of land and build some big, you know office building or, you know, high end apartment complex or even a stadium for example. So that’s EB 5. But you got to have the cash. E2 is another way to pivot out of F1 temporarily as long as you have. Cash and an idea that you want to pursue investment wise. 

Kleinee Powell 

Garry Davis 

That’s a very good question, so. 

Kleinee Powell 

Hmm. 

Garry Davis 

As I mentioned early on, we’ve got the different concepts of immigrant, which is the green card and non immigrant, which is the temporary purpose visa right? Like a visitor visa, student visa and investor visa. Those kinds of things are all temporary in nature, so to be able to qualify for those you have to show the US government that you have an intention to depart at the end of your stay. 

Kleinee Powell 

Speaker 

Garry Davis 

Whereas with an immigrant it has to be the opposite, it has to be your intention that you are intending to permanently reside here. And in fact, that becomes an issue for some people that like to travel a lot, because if they’re gone too much from the country, the government can actually take away permanent residence and force them back into a visa because they’re obviously just a temporary visitor and they’re using it as a permanent visa, which you can’t do. So it’s they they really hold everyone to that standard of immigrant versus non immigrant. What is your intention? 

Speaker 

Oh wow. 

Garry Davis 

Now, once you’ve arrived here, your intention will be as a student, for example, that you’re going to stay on a temporary basis and just go to school with your studies. Let it play out, and then leave. That’s what your intention is at that time. But the truth is, people are people, and intentions change and the law recognizes that. And so it’s. Hey, if you’re moving from the non immigrant realm into the immigrant realm, that’s OK to do that as long as when you enter the country your intention was to be here on a temporary basis. If your intention changes because of opportunities that presented themselves or whatever, totally fine. 

Kleinee Powell 

Oh, OK, nice. So is there another option for people to, you know, kind of? Become a citizen on their own or invest in themselves. 

Speaker 

Yeah. 

Garry Davis 

Yeah. The other one that we should talk about is called the national interest waiver. And frankly, we probably should add this to the list of of a of a category of option that we do an episode dedicated on because I get so many questions about this and there’s several reasons why. But let me talk about the requirements and then we’ll get into what some of the questions that people ask and and I’ll do my best to briefly. Respond to some of those common questions that I get. So if someone’s going to come to the US to do work, that has the potential to benefit the country as a whole. The typical kind of standard case example would be medical research, right? So someone’s here doing like genetics, research or microbiological research on cancer or Alzheimer’s. Or other disorders that are genetically based or whatever, that kind of medical research, even pharmaceutical research people that are doing work and have a unique background and skill set that make them qualified to do that specific kind of ref. Church. We want those people here, right. And so the national interest waiver provides that opportunity, that pathway for them to do that. 

Kleinee Powell 

Yeah. 

Garry Davis 

Generally you have to have a master’s degree or higher degree. To be able to qualify and you have to again show that the scope of the work that you’re going to be doing has the potential. To benefit the country as a whole. 

Kleinee Powell 

Hmm. 

Garry Davis 

And that can be somewhat challenging outside of the medical research or medical. Search is is easy to show how that has the potential to benefit the. Whole. Country if they have some breakthrough and cancer, you know, prevention and treatment, obviously it’s going to have a huge impact, a huge benefit, heart disease, Alzheimer’s, those kinds of things, right. Medical research is is kind of an easy way of looking at it. But there’s other things too that qualify as being in the national interest. 

Kleinee Powell 

Definitely. 

Garry Davis 

For example, some cases that I’ve that I’ve been involved with in the past or or worked for a firm that we had some of these kinds of opportunities to to work on national waiver cases. The person that developed the idea behind HOV lanes for traffic control that got a national interest waiver, you could see how right, because the work that he was doing had the potential to benefit the. 

Speaker 

Wow. 

Garry Davis 

Country on. A broad scale. Yeah, right. There was another guy, an agricultural scientist, that developed a a agricultural method for cultivating rice that led to super high yield. Well, you could see how that would, you know, create a benefit for the country as a whole when you’re talking about food production, right. So it’s not just medical research. It could be, you know, logistics, it could be agriculture, it could be in some cases, it could be perhaps. 

Kleinee Powell 

That’s. 

Garry Davis 

Kleinee Powell 

Hmm. 

Garry Davis 

In other words, something about their background they’re bringing to that opportunity creates the potential for the benefit for the country that there’s something about them that’s a little bit unique, maybe two different degree paths, two different masters degrees, that sort of work together, genetics and microbiology, for example. So that make them a little bit unique relative to their peers. And for us to realize that scope potential, they really need to be doing this. 

Speaker 

Work. 

Garry Davis 

And the last one is and is where people get really tripped up. You have to have the present opportunity to do that work. And people miss that requirement because when you read about national interest waiver online, for example, even at a government sourcelikeuscis.gov a very good place to get information about this stuff. They say specifically that you don’t need a job offer to apply for a national interest waiver. That is 100% true. You have to show that you presently can do that work. They don’t want to give someone a green card as a national interest waiver for them to come here. There and, you know, own a company doing food service or something. I mean they want to make sure that when they come here, they can start doing that nationally significant work right away. 

Kleinee Powell 

Mm-hmm. 

Garry Davis 

So a job offer would meet that requirement, even though the law says it’s not required specifically. But what else would meet it then? Is the question I get, and the answer is it could be. Your own company that you set up to do consulting and what you do and four or five contracts from companies that want to hire you to come in and do that work for them or perhaps it would be a contingent job offer, a job offer where an institution or a company says we intend to put this person to work for us, for human resources reasons, regulatory reasons we can’t. Offer a job specifically, but if you guys give him a green card then we’ll put him to work right away. As soon as he gets the green card, we’re just waiting for that to happen first before we can make a formal off. Right. So there’s certain things that we can do to present a case to the government that this person will be able to do that work right away when they get that that green card through the national. Interest waiver. 

Kleinee Powell 

Right, right. 

Garry Davis 

So those are the big three of kind of self sponsored EV1A for extraordinary ability. EB1B for outstanding professors and researchers, and the national interest waiver, which is which is a really, really good option for a lot of people to pursue when they have that unique skill set and background in the opportunity. 

Speaker 

Got you. 

Kleinee Powell 

Right. So let’s see, have we talked about all of our options or is there anything that we’re leaving out from an F1 student visa moving into that permanent resident? 

Garry Davis 

Status. Yeah. So there’s the next one that we can talk about is some people call, call it labor certification. That’s the technical term. Some people call it perm, which is an acronym that the Labor Department. 

Kleinee Powell 

Garry Davis 

Uses for that same process. Some people refer to it as EB2 or EB3, and EB stands for employment based level 2 or Level 3. 

Kleinee Powell 

Garry Davis 

And so basically that’s company sponsorship through employment. So let’s say that a student. Is finishing up their education. They’ve had an internship with the company that’s made them an offer. When a student graduates at each level of of education, which would be either associates or bachelors for one masters for two. And a doctorate level for three. 

Kleinee Powell 

Garry Davis 

Their student visa allows them to apply for what’s called optional practical training or. ET which gives them a work authorization to go do work in their field of study, and for people that are in science, technology, engineering, or math majors, STEM majors, you actually get one year OPT with a potential for a two year extension. So three years total non stem just get one year at each level. 

Kleinee Powell 

Garry Davis 

Kleinee Powell 

Mm-hmm. 

Garry Davis 

So they make that determination is the first step. Second step is actually recruitment the employer that’s sponsoring the person has a as a very strict regulated process for advertising for that job as though it were available to the public. And it’s it’s kind of silly, but one of the things that the Labor Department requires is a newspaper ad. And we used to do when I started out, we would do Wednesday afternoon newspapers because it was the cheapest because nobody read the Wednesday afternoon. Newspaper. But these days nobody reads the newspaper and and yet the Labor Department requires us to pay for Sunday newspaper ads, which are the most expensive in the biggest paper in the local area. So you can’t pick, you know. 

Kleinee Powell 

Wow. 

Garry Davis 

One of these smaller community papers you got to pick, you know, the Dallas Morning News or the Houston Chronicle or Fort Worth * Telegram. And you got to pay those ridiculous rates sometimes. Several thousands. Yeah. It’s like 2000 plus for an ad that’s like 3 or 4 lines. It’s how newspapers are still. 

Kleinee Powell 

Am I allowed to ask how? Much it is. Oh. No way. 

Garry Davis 

Life. Yeah, somebody did a really good job lobbying the Labor Department to keep that as a requirement. It makes no sense because nobody reads the paper. Well, we have to do postings in those same areas. 

Speaker 

Yeah, they did. 

Garry Davis 

To show those that are working there, you know what this job is paying and just to make sure that US workers aren’t being disadvantaged within the company context. So there’s a very regimented approach that we have to do. It takes about 90 days to get it all done. The State Workforce administration here in Texas, at Texas Workforce Commission also has to have a posting there. So it’s very publicized. Even in the newspaper. To make sure that everybody has the chance to see that there’s a job available and then as people apply for the job, or maybe no one does. But as people apply for the job, then the employer has to review those applications for the job, see whether or not they’re actually qualified for the job, and if they are qualified for the job, then they either have to. 

Kleinee Powell 

Yeah. 

Garry Davis 

Offer them a position that’s in addition to the one that we’re doing, or we stop the case. And so the way I view it is that we want to get the smartest, best, most talented, most capable people working in our. 

Kleinee Powell 

Oh wow. 

Garry Davis 

Economy. Regardless, right, we just want the best that. We. Can get and so that’s part of what we help our employer clients do with the EB2 or the EB3 process. 

Kleinee Powell 

That’s interesting. I never thought about it. 

Speaker 

Yeah. 

Garry Davis 

Like that and the last one, I’ll just mention briefly here because we don’t have a lot of control over it. There is a lottery. The government puts out basically 50,000 or so green cards that are available each year that are just given out for diversity purposes. So if you’re from a country where there’s a high volume of people applying for permanent residents or green cards already, then the country will be excluded from the list for that given year. But as long as you’re from a country that doesn’t have that heavy of a of a load coming into the country. Then you can apply to be included in that lottery selection, and there’s millions of people that apply every year. 

Kleinee Powell 

Really. 

Garry Davis 

There’s no cost to apply. And basically it’s 50,000 visas from so that we can maintain a a level of diversity in our immigrant population here in the US so they they hundred, 100,000 win, 50,000 come with their families and there’s some requirements around it as well. But but it’s free to apply and so people that are here on F1 absolutely can jump into the diversity visa. Lottery and see if they happen to get selected and if they do, great. 

Speaker 

Wow. 

Kleinee Powell 

Garry Davis 

Yeah, there is. And frankly, it’s a real benefit to each of us that we’ve got this program in place from my perspective. 

Kleinee Powell 

Definitely. You’ve got a great perspective, very positive outlook. Well, I just wanted to say thank you very much for coming on our show today. We’ve really enjoyed having you and we always do and I just want to say thank you for watching everyone. We’ve had so much fun talking about F1 student visas and the pathways and the options that are available to everyone out there. So Tune in next time.