Advice for F-1 Students

Hendrik Pretorius was interviewed by Zippia in an article entitled “Foreign Nationals Guide to Getting a Job in the U.S.” to comment on what F-1 students can do to prepare for future immigration applications needed after F-1 and OPT statuses expire. This section is provided below.

How far in advance should you start planning to get a visa?

It's hard to give a generic answer as visa processing varies so greatly from case to case and because government processing times are so hard to predict currently. In general, I would suggest kicking off your application as a professional level employee or entrepreneur at least four to six months in advance. There are a lot of documents and data that you need to gather and if you are depending on an employer as a sponsor they also need to assemble paperwork and in certain cases need to complete processing with the Department of Labor even before a case can be filed with the Immigration Services (USCIS). There are also other timing issues to be concerned with such as the annual H-1B quota and very particular filing periods.

For students, I don't think it's ever too early to start planning. One great visa option to consider for graduate level students or those who have work experience in addition to a degree is the O-1 visa which is based on your proven ability in a field. If someone doesn't qualify right away and we have one or two years to work with them, we can put them on a track and guide them towards what achievements or acclaim they should try to obtain. That can include memberships in groups, speaking on panels or writing articles, things that can really bolster their case down the line.

I love talking to people who are a year or more away from graduation and want to understand what their options are. I think students tend to wait a little too long to begin understanding the process. Most of them have Optional Practical Training (OPT) period where they are allowed to work for 12 months or more depending on their degree background. Sometimes students start thinking about their next visa move too late in that OPT period. If they can start getting info and reaching out before graduation, that would be awesome.

How do you know when to see an attorney vs. getting a visa on your own?

Certain visa applications, like B-1, B-2, and student visas, are far more straightforward than others. People usually complete these on their own unless they are in unique scenarios where they need help due to issues that may make them inadmissible to enter the U.S. Beyond that, I think it is a bad idea in most cases to go at it completely alone. Under the current administration, there is a considerable increase in challenges to almost every visa type. I think that everyone should be willing to at the very least, sit down and have an in depth consultation with an immigration attorney. They can raise potential issues or red flags and help an individual decide if they want to apply on their own or not.

Applying on your own is not going to give you nearly the same chance of success as using a qualified attorney. Individuals should work with immigration attorneys who know specific trends and what the government is challenging on certain visa application types. There are a lot of different immigration attorneys with varied experiences, with varied processes, and of course with different fee structures. Some lawyers even have an additional Legal Specialization in immigration law provided by their State Bar associations based on additional testing, the number of cases and case types represented in practice, and additional educational requirements. Do your homework and ask to speak with a few different attorneys briefly to ask them about their background.

What are the most common mistakes people make while getting a visa?

One mistake is starting too late. People often wait too long to find out if any options exist or try to file a case in a month. You might have to work towards being qualified for specific visas or work remotely outside of the U.S. for a company and come in later. Applicants also underestimate the lift involved. Overall, it's not a quick little process. There are a lot of documents that you need to obtain, and it usually takes weeks if not months, to prepare an application.

Finally, people don't always understand what they are and are not allowed to do under a particular visa status. Say you are a student and have a business idea. You may not realize that there are some pretty big implications and issues if you are spending a lot of time pursuing a business idea. It might be considered a failure to maintain your current student status, which can mean you're out of your visa status, having long term implications. I've seen clients get in trouble because they do not fully recognize the importance of what their particular visa type enables them to do. Some cross the line into not maintaining that visa properly by doing things that they are not authorized to do.

What can you do to maximize your chances of getting your visa approved? If you don’t get it the first time is it worth appealing?

Start early and try to build your case. Under the current administration, the approach that we take and that most immigration attorneys take is to over-document eligibility as much as possible. Because there has been a huge increase in requests for evidence, we now provide a lot more than we used to. Erring on the side of over-documenting in an application certainly helps. There has also been an increase in denial rates overall. People should find out what their options are as soon as possible and start building a solid case, collecting documents, and bolstering their background and that of their employer or new business, depending on the visa category in play. Applying for a visa is a long process, not a week-long endeavor.

If a case is denied there are options to challenge the denial via the Administrative Appeals Office as well as motions to the Immigration Services. The two types of motions are a Motion to Reopen and a Motion to Reconsider. The Motion to Reopen a case will allow you to state new facts in challenging the denial. A Motion to Reconsider is focused on arguing that there was an incorrect application of the law. Whether utilizing any of these options is really a case specific consideration as should be discussed with an experienced attorney. Often the decision is whether to challenge a denial or whether to bolster the case with additional evidence and to re-file an application.

I will also note that another option is to challenge denials in Federal Court. Historically, people have not challenged denials in court all that much but this has started to change a bit under the current Administration. Again this option should be discussed with your immigration lawyer.

From a timing standpoint, if a denial is something that can be rectified relatively easily with additional documentation, refiling may make sense from a timing standpoint but this is a decision to be made with your attorney to understand if there is any downside to doing this and if it is even possible. If the case was denied based on a legal issue, not an evidentiary issue that can be easily solved, it might make more sense to challenge the denial. For example, appealing might make more sense if an immigration officer inaccurately denied the case based on a misapplication of the law.

What advice do you have for individuals going through this process?

Be prepared to spend time and invest resources in this process. It helps to be represented by an immigration attorney. Things go a lot more smoothly when people take the visa application process seriously. When we work with clients who are not put off by having to spend many hours of their time accumulating documents, speaking to us, and nailing their case, it makes a huge difference. You also have some people who don’t want to be bothered by the application. They know it is a big deal and that they need a visa but feel that they should be able to get one without spending much time or attention. This is a big mistake, especially under this administration.

Next Step: Get Help Understanding your Immigration Options

To speak with experienced immigration counsel and California Bar Certified Legal Specialist in Immigration Law, Hendrik Pretorius, please click here to select a time that works for you. Thank you!

Disclaimer: The information provided here is not legal advice and does not purport to be a substitute for advice of counsel on any specific matter. For legal advice, you should consult with an attorney concerning your specific situation. Legal standards and rules often change.

Source: This was published as part of a larger article on Zippia.