My OPT is about to expire. Now what?

By Desiree Jaeger-Fine

You have completed your LL.M. and obtained your OPT (Optional Practical Training), but now it is about to expire. What are your options?

 Many clients ask me whether they would be eligible for a J-1 visa, assuming they would find a willing employer. The answer is not a clear-cut yes or no, as it rarely is in visa cases. 

The Exchange Visitor non-immigrant visa category (J) is for individuals approved to participate in work- and study-based exchange visitor programs to experience U.S. society and culture and engage with Americans. The Exchange Visitor Program fosters global understanding through educational and cultural exchanges. All exchange visitors are expected to return to their home country upon completion of their program to share their exchange experiences.

If you hold a J-1 visa, you may not arrive more than 30 days before the start of your program, and you have a grace period of 30 days to depart the U.S. upon completion. If your sponsor terminates your participation in the exchange program for just cause, you will be expected to depart the U.S immediately. You will not be entitled to the post-completion 30-day period because you did not complete your program. 

A J-1 visa is only applicable for your current J-1 exchange program and under your current program sponsor. Upon completion of your current J-1 program, you are expected to depart the U.S.

If you intend to pursue a second J-1 exchange program, you will need to apply for a new J-1 visa for your new exchange program.

What is a J-1 host? 

The host is the company/law firm at which you are conducting your training/internship. Finding a company or law firm to hire you as an intern/trainee is, however, not enough. You will also need a sponsor. Luckily, this is rather a formality if you meet the requirements.

What is a J-1 sponsor?

To participate in the Exchange Visitor Program, foreign nationals must be sponsored by one of the State Department’s designated sponsors, such as U.S. government, academic and private sector entities. Program sponsors are responsible for screening and selecting eligible foreign nationals for participation in their designated exchange visitor program, as well as supporting and monitoring exchange visitors during their stay in the U.S. You can find a list of designated sponsors and their programs here.

So, can I get a J-1 after my OPT?

The different visa categories (F-1, J-1, OPT and CPT) are not created to confuse people; they are created for different purposes.

The J-1 Intern/Trainee program is intended to train students and graduates of schools outside the U.S. to experience U.S. society and culture. The CPT (Curricular Training) and OPT, on the other hand, are designed to give training opportunities to foreign students and graduates of U.S. schools.

This table will hopefully make the difference clear:

You are a…

Your school is…

You have work experience outside the U.S.

You are eligible for:

Student

In the U.S.

n/a

CPT/OPT

Graduate

In the U.S.

n/a

OPT

Student

Outside the U.S.

n/a

J-1 Intern

Graduate

Outside the U.S.

1+ Years

J-1 Trainee

 

Per this table, it is not possible for an OPT trainee to transfer to the J-1 Intern category because you are not currently a full-time student at a school outside the U.S. (or within 12 months of finishing studies at such a school).

What about transferring to the J-1 Trainee? In theory, this is possible. If, for example, you graduated with a law degree from a school in your home country, then worked for a year as an attorney, and then went on to do an LL.M. in the U.S., you technically meet the requirements of the J-1 Trainee program. But, you may have problems finding a J-1 sponsor to accept your application. Why wouldn’t they accept it?

As we said above, the J-1 is intended to provide cultural and educational exchange and foster global understanding. After your study in the U.S. and your OPT, one can argue that you have already had plenty of time to explore U.S. culture and obtain U.S. knowledge and expertise. This is particularly true if you intend to stay with the same employer and only move from OPT to J-1 to avoid the H1-B dilemma. J-1 sponsors are largely committed to the spirit of the J-1 program, and their quota would be used more equitably if offered to someone who has never had this opportunity. In addition to honoring the spirit of the J-1 visa, sponsors are also under a lot of pressure and enormous scrutiny. The U.S. Department of State has undertaken efforts to eradicate misuse of J-1 programs for obtaining employment and circumventing the H1-B visa. J-1 sponsors can lose their designation as sponsors or have their quotas reduced. Since your case will be complicated and its outcome uncertain, J-1 sponsors may decide that it is not worth their time. 

So, what is the answer? 

If you have a U.S. LL.M. degree and already worked in the U.S. under your OPT, you are not eligible for a J-1. Having said that, many sponsors may not apply the rules so strictly. I know of cases where former OPTs stayed in the U.S. under a J-1. You should, at the very least, expect to have to ask more than one sponsor, and be prepared to demonstrate just how substantially this additional training will benefit your understanding of U.S. culture. If your plan is to stay at the same law firm and move from OPT to J-1, you will have a hard time making this argument. 

Desiree Jaeger-Fine is principal of the Jaeger-Fine Group, a career management firm for international attorneys in New York, and author of "A Short & Happy Guide to Networking" (West Academic Publishing).