Introduction
This guide provides a brief overview of the general hiring practices of public interest law organizations with respect to noncitizens. First, it describes how the constraints of U.S. immigration law tend to impact noncitizens during a public interest job search. Second, it outlines some routes aspiring noncitizen public interest lawyers may pursue to obtain work authorization, even if only temporarily. It also highlights some of the challenges noncitizens (and employers) face during this process and offers some strategies and general advice to navigate these challenges.
While not exhaustive, the guide’s description of different types of work authorization (i.e. visas), is intended to fit into a broader discussion of how noncitizen law students and lawyers become eligible for employment in the United States, and how different aspects of U.S. immigration law can affect the hiring decisions of employers. There may be alternative paths to obtain work authorization, depending on one’s individual circumstances.
It is important to note that public interest organizations are not a monolith with respect to their willingness to hire noncitizen applicants. Organizations weigh various factors and are free to set their hiring policies as they wish, within the bounds of U.S. immigration law. These policies are often subject to change, so we strongly encourage students to communicate directly with employers of interest for the most up-to-date information about their hiring practices.
Please also note that the information provided in this guide is not intended to constitute legal advice but is for general informational purposes only. Students should contact an immigration attorney to obtain legal advice. Only an individual attorney can provide assurances that the information contained in this guide is applicable to or appropriate to any individual’s particular circumstances. Students can and should also reach out to the Harvard International Office which supports international students across the University.
U.S. Immigration Law and Employment Authorization
U.S. employers are required to ensure all their employees are legally authorized to work in the United States. If you are not a citizen or lawful permanent resident (“green card” holder), you must be expressly authorized to work by U.S. Citizenship and Immigration Services (USCIS). This work authorization requirement makes it more difficult for noncitizens to be hired to work in the U.S. across all sectors, and the legal industry is no exception. Indeed, that is the goal: part of USCIS’s mandate is to protect U.S. citizen workers by limiting the ways, numbers, and length of time noncitizens can work in the U.S.
To obtain work authorization for their noncitizen employees, employers need to “sponsor” noncitizens for work visas. This requires employers to file paperwork with USCIS and pay processing fees (these fees cannot be transferred to employees). During the sponsorship process, employers may face additional bureaucratic hassles such as the inconvenience of waiting for government approval (which can take many months), and concerns about the availability of these visas (the government caps some visa categories).
The obstacles of employment-based visa sponsorship can be particularly burdensome to public interest employers. Public interest organizations, whose operating budgets are often lower than their private sector counterparts, may not be able to pay processing fees for work visas, which usually add up to several thousand dollars. Additionally, even organizations that can afford to pay sponsorship fees may still opt to hire only U.S. citizens or permanent residents as a general cost-saving measure. In a competitive job market, these employers will almost always have U.S. applicants for listed positions, so they may choose not to allocate any funds for visa sponsorship.
Federal Government Hiring of Noncitizen Attorneys
In general, you must be a U.S. citizen to work for the federal government. The federal government can only hire noncitizens in rare circumstances. Attorney positions in the federal government are in the excepted service, typically under an appointment called “Schedule A.” This designation means that federal agencies may hire applicants for attorney positions without following the civil service hiring procedure of employing only U.S. citizens for competitive service jobs.
While noncitizen attorneys are exempt from civil service hiring procedures, federal agencies are still subject to other hiring restrictions. Besides meeting the requirements of U.S. immigration law, which affects all employers, federal government agencies are additionally subject to the Annual Appropriations Act, which prohibits, with various exceptions, the use of appropriated funds to employ noncitizens within the United States. This effectively prohibits federal government agencies from sponsoring noncitizen work visas.
It is worth noting that some agencies and some groups of noncitizens are not included in the Act’s prohibitions. The Act does not impact:
- Unpaid volunteers. It is usually at the discretion of federal agencies to accept volunteers, provided they have appropriate work authorization (for example, OPT). However, this choice is rarely financially feasible for recent graduates.
- Employees whose duty stations are outside of the continental United States.
- Legal permanent residents (green card holders) who have applied for naturalization.
- Noncitizen nationals (for example, natives of American Samoa and Swains Island).
For noncitizens with permanent residence, getting a paid federal government position is possible, but it is still extremely competitive. The federal government gives strong priority to hiring U.S. citizens. Accordingly, unless a noncitizen candidate brings a hard-to-find talent or skill to an agency, the agency will prefer a U.S. citizen applicant. Additionally, at the present time, many government agencies are facing substantial budget cuts, and the hiring of federal government attorneys has decreased. Correspondingly, due to the availability of qualified U.S. applicants for positions, some agencies that have previously accepted noncitizen applications are no longer considering them. Noncitizen applicants should thus realize that they are at a disadvantage, regardless of their permanent resident status. Given these formidable obstacles, permanent resident applicants should follow the same strategies outlined elsewhere in this guide. In brief, they should target employers that might value their skills and international backgrounds and should be as diligent and organized as they can so that employers have ample time to consider their candidacy.
State Government Hiring of Noncitizen Attorneys
Unlike the federal government, you generally do not need to be a citizen to be eligible for most state or local government jobs. However, you must still have the necessary visa, work authorization, and meet the requirements set forth by immigration laws. There may be some specific positions that require citizenship, and this varies depending on the location. Since most state or local budgets are tight and do not allocate funds for the purpose of sponsoring employment visas, these practice settings may be reticent to hire noncitizens as a cost-saving measure, discussed above.
Given these challenges, it is safe to say that during the public interest law job search, U.S. citizens and permanent residents have a sizeable advantage over noncitizens who require employment-based visas. Noncitizen law students must therefore plan carefully, taking inventory of the skills that a top-notch legal education has provided them and think about how these skills and their unique background may be of unique value to certain organizations. When pursuing positions at targeted organizations, noncitizens needing visa sponsorship should understand that the burdensome processing requirements of employment-based visas may impact hiring decisions. Realize that employers likely need to plan ahead and make early judgments about whether they want to sponsor particular candidates (even if candidates do not currently need visa sponsorship but may need it in the future). When possible, candidates should get to know employers during law school, so that employers have ample time to decide if candidates are worthwhile investment for future sponsorship.
Short Term Work Authorization for Noncitizen Students Seeking Public Interest Legal Work: F-1 Optional Practical Training (OPT)
Though there are significant challenges in seeking long term employment authorization for noncitizen public interest law students, it is possible to receive temporary authorization through the F-1 Optional Practicing Training (OPT) program. OPT is a benefit for students with F-1 visas (a common nonimmigrant student visa) who wish to work in the U.S. in a law-related job. OPT, defined as employment directly to the student’s field of study, may be authorized for up to 12 months, either during the summer, during the academic year, or following graduation.
OPT must be authorized by USCIS based on a recommendation from the designated school official at the institution the student attends. Students need to make an appointment with the Harvard International Office to get this recommendation. Once students have obtained this recommendation, they receive an Employment Authorization Document (EAD) from USCIS allowing them to work under their F-1 visa for a maximum of 12 months.
Overall, obtaining OPT is a straightforward process. If the student receives the appropriate endorsement from their institution, OPT is generally approved by USCIS. Additionally, since all documentation is provided by the student, the student’s school, and USCIS, the process of obtaining an OPT requires no extra effort from employers.
The Practical Difficulties of F-1 OPT
While obtaining OPT authorization is usually straightforward, there are practical difficulties associated with OPT that may affect a noncitizen’s ability to be hired by a public interest employer. Above all, the main concern employers have about OPT is the 12-month time limit. After the OPT period concludes, the noncitizen needs to convert to a different visa in order to remain with his or her employer. Most public interest organizations will not hire someone for a permanent position knowing they are only authorized to work in the U.S. for one year.
The most viable post-OPT option is for an employee to seek a temporary, employment-based visa, in which the employer files an application on behalf of the worker and pays associated sponsorship fees. As noted above, many public interest organizations may be deterred from hiring OPT candidates in anticipation of this next step: some organizations cannot afford to pay fees and/or do not allocate funds for visa sponsorship. Moreover, organizations seeking professional-level candidates usually spend significant time and energy training and mentoring new hires; therefore, organizations unable or unwilling to pay sponsorship costs may be hesitant to hire OPT candidates with only 12 months of employment authorization.
Given these concerns, public interest organizations may need to do some early thinking about whether they are able to sponsor employment-based visas (and be able to continue to employ noncitizens beyond the 12 months of OPT) before making any offers of employment. One can imagine situations in which an organization would be interested in sponsoring such a candidate; perhaps the candidate has specific insight into the organization’s mission or possesses unique language skills. Whatever the organization’s hiring criteria, public interest employers must reckon with the reality that most OPT applicants will require visa sponsorship to stay more than 12 months and will have to evaluate whether the administrative and financial costs of future visa sponsorship is worth investing in the noncitizen applicant.
Noncitizen law students will therefore likely have an easier time securing a position with a public interest employer after graduation if it is a temporary, one-year role, such as a fellowship. Indeed, fellowships are how many HLS graduates begin their public service careers, regardless of citizenship status. The Office of Public Interest Advising has a wealth of resources about fellowships on its website.
H-1B Visa for Specialty Occupations
If a public interest legal employer does want to invest in a noncitizen employee and retain them beyond the OPT period, they will typically do so by sponsoring an H-1B visa for individuals working in a ‘specialty occupation.’ A ‘specialty occupation’ is defined as a job that requires at least a bachelor’s degree or higher in a specific field of expertise. While every case is different, the H-1B process typically includes the following:
- The lawyer must first receive a job offer from a U.S. employer who is willing to sponsor the visa application.
- The employer must file a Labor Condition Application (LCA) with the U.S. Department of Labor, certifying that the lawyer will be paid at least the prevailing wage or higher for the position and that employment conditions will not adversely affect similarly employed U.S. workers.
- Once the LCA is approved, the employer submits an H-1B petition to USCIS on behalf of the noncitizen lawyer. This includes evidence of their qualifications, the job offer, and other required documentation.
H-1B visa holders are admitted for a period of up to three years. That time period can be extended but generally cannot go beyond a total of six years, though some exceptions apply. An H-1B employee may only work for the organization that sponsored the application; if the lawyer seeks employment with another organization, the new employer must start the process over and file a separate H-1B petition.
There are different fees depending on the type of H-1B petition an employer submits. Most employers will spend approximately $10,000 to petition for a first-time H-1B visa holder, with additional costs for attorney fees, according to a National Foundation for American Policy Analysis in 2024. Filing an extension for an H-1B professional would raise typical costs for employers to between $18,000 to $33,000. This is an extremely high cost for many under-resourced public interest employers.
H-1B Visa Cap and Exemptions for Certain Public Interest Employers
Due to the popularity of the H1-B visa, there is a legislative mandated cap on the number of available H-1B visas available annually, and a lottery system is used to select which applicants will receive the visa. There are 85,000 H1-B visas available through the lottery each fiscal year (October 1 to September 30). There are two different H-1B visa caps depending on your highest earned degree. Applicants with a bachelor’s degree are subject to a cap of 65,000 visas/year (known as the “regular cap”), of which 6,800 are reserved for professionals from Chile and Singapore. There are an additional 20,000 visas per year for those holding master’s degrees or higher (known as the “master’s cap”). Eligible applicants, including JD and LLM holders, are automatically entered into the master’s cap lottery as well as the regular cap. USCIS always conducts the regular cap lottery first, and then the master’s cap lottery. That means applicants eligible for the master’s cap lottery get two chances for selection rather than just one. Employees who already hold H-1Bs and are seeking renewal are not subject to the annual cap.
H-1B Cap Exempt Employers
It is worth noting that certain public interest employers are not subject to the annual H-1B cap. USCIS designates “cap-exempt” organizations as institutions of higher education, nonprofits “affiliated with institutions of higher education,” (teaching hospitals connected to a university medical school being the most common) and “research organizations.” These terms are loosely defined and determining whether one of these exceptions applies to a prospective employer might require some investigation. Whether an organization actually qualifies for cap-exemption is subject to USCIS approval on a case-by-case basis.
It is not likely that a job posting will contain any information about an employer’s cap-exempt status because most employers are not thinking about H-1B sponsorship when seeking to fill an open position. It is best to seek the advice of an immigration attorney who can assist you in determining whether a particular job would be cap-exempt.
Other Challenges with the H-1B Visa
The biggest concern of public interest employers with regard to H-1B visas has already been outlined in this guide; namely, that they are unable or unwilling to pay fees, especially in a lottery system where success is not guaranteed. In addition to concerns around visa processing costs, employers may be wary of H-1Bs for a few other reasons.
Firstly, employers may be opposed to the H-1B requirement that workers must be paid the prevailing wage in their area of employment, established by the U.S. Department of Labor for each trade and occupation, as well as by State Departments of Labor. Employers are required to pay H-1B workers the higher salary of either the government-decided prevailing wage, or the wage that the organization pays to other workers with similar credentials. In practice, this requirement limits the ability of some nonprofit organizations to pay H-1B lawyers since nonprofit salaries tend to be lower than government salaries. It is reasonable to assume that unless a candidate is truly exceptional and seeks a hard-to-fill position, an under-resourced nonprofit may not pay a prevailing wage for H-1B purposes.
Another potential difficulty of the H-1B is timing. Typically, the entire quota for H-1Bs has been reached a few months after the visas are made available. While the timeline for visa exhaustion does vary from year to year, quota problems generally persist when the economy is doing well, and when many employers are hiring whereas in a slower economy H-1Bs are not used up as quickly. Regardless of the period of H-1B availability in a given year, if an organization’s specific hiring timetable does not correspond with visa availability, it will be unable to sponsor H-1B employees.
While H-1B quotas can affect the hiring process, employers may be able to avoid quota issues if they initially employ a recent graduate through OPT, and then make an early decision to sponsor the employee for an H-1B. Given this timeline, an organization would be able to petition for an H-1B on the first days of visa availability.
Other Potential Employment Visa Options for Canadian, Mexican, and Australian Law Students
Although the H-1B is often the best option for noncitizen public interest lawyers to remain authorized to work in the U.S. beyond the OPT year, nationals of certain countries may have other temporary employment-based visa options:
Trade NAFTA (TN) Professionals Visa for Canadian and Mexican Nationals
The North American Free Trade Agreement created special economic and trade relationships for the U.S., Canada, and Mexico. The TN visas permits qualified Canadian and Mexican citizens to seek temporary entry into the U.S. to engage in business activities at a professional level. Lawyers are among the types of professionals eligible to seek admission at TN nonimmigrants. Importantly, the procedure to obtain a TN visa is different for Mexican citizens and Canadian citizens.
E-3 Specialty Occupation Workers from Australia
The E-3 classification allows nationals from Australia to enter the U.S. to perform services in a “specialty occupation,” including legal practice.
Alternatives to Employment-Based Visas
Depending on individual circumstances, noncitizen law students may be eligible for non-employment visa avenues to remaining in the U.S. Some graduating law students have family members who may be able to sponsor them directly; this route could be a good way to avoid the process of labor certification. Candidates should ask themselves whether they (or their spouses) have any relatives who are, were, or may soon be U.S. citizens or permanent residents.
The Diversity Immigrant Visa Program (“the Diversity Lottery”) is an annual government program that has the goal of encouraging immigration from countries that are underrepresented in the United States. The program makes up to 55,000 immigrant visas available annually, drawn from a random selection among all entries to individuals who are from countries with low rates of immigration to the U.S. This program is administered by the U.S. Department of State, not USCIS. Though chances of winning the lottery are very slim, noncitizens should certainly apply if they are nationals of an eligible country.
Tips for Navigating Challenges
Clear Communication with Employers
Not all public interest employers are equally informed about the existence of the OPT program and/or employment-based visas processes. Some employers may have never received an application from a noncitizen, much less have hired them, and are therefore not well-versed in the specifics of student and employment visas. You may have to educate employers on the various considerations related to hiring noncitizen law students and attorneys.
It is conceivable that an organization could hire an OPT candidate without understanding the implications of the decision. For example, consider the case of a small nonprofit that happily employs a recent graduate with OPT for 12 months, and then is unpleasantly surprised to find out that it needs to pay thousands of dollars in processing fees to apply for a visa that is not guaranteed. In this example, the employee has created a difficult situation by not giving the employer adequate time to prepare for visa sponsorship. Assuming the graduate wants to work in the U.S., this situation could have serious consequences: if the nonprofit is unable to sponsor the graduate, the graduate may need to leave the country.
To avoid this type of difficult and uncomfortable situation, noncitizens should make sure to have informative, candid conversations with their prospective employers with respect to their immigration status. This includes those being hired into a position with their OPT authorization being up-front with employers about their eventual need for sponsorship. There are several resources to support students in preparation for these discussions, including OPIA advisers, HIO, and/or your immigration attorney.
Target Employers Who Value Your Unique Skills
In addition to educating employers and communicating clearly, it is wise to think strategically about the ways in which public interest organizations may find extra value in hiring noncitizens and therefore be willing to invest. There are numerous skills and life experiences that make noncitizens exceptional candidates, including multilingualism, cross-cultural competencies, adaptability, and many more. Public interest employers do direct representation of diverse community members find such skills particularly useful. Do not be afraid to highlight the ways in which your immigrant experience will allow you to contribute global perspectives, innovative approaches to problem-solving, and a strong work ethic.