Teachers
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Nonimmigrant Options for Teachers H-1B Visa for Teachers The H-1B visa program allows foreign workers in specialty occupations to stay and work in the U.S. on a temporary basis. However, unlike other nonimmigrant categories, H-1B workers do not need to maintain a residence in their home country during their period of stay in the U.S. The H-1B visa is a “dual intent” visa and the worker may seek lawful permanent resident status. A “specialty occupation” is defined in the Immigration and Nationality Act as one that requires the theoretical and practical application of a body of highly specialized knowledge, and the attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum entry into the occupation in the U.S. In order for the teacher to be eligible for an H-1B visa, the teaching position must be a specialty occupation, meaning that a bachelor’s degree or higher or its equivalent must normally be the minimum requirement for the position. The teacher must also have the education and meet the requirements for the specialty occupation, i.e. a U.S. bachelor’s degree or a higher degree or its foreign equivalent, or education, training or experience in the specialty equivalent to the completion of such degree. The teacher must obtain state licensure, if required for practice in the state, or documentation from the licensing board that the teacher has met all requirements for the license except for the possession of a visa or social security number. The employer who wants to sponsor a foreign teacher for an H-1B visa must first obtain a certified Labor Condition Application (LCA) from the U.S. Department of Labor, which contains basic information about the proposed H-1B employment such as the salary, period of employment and work location. The employer will also make attestations in the LCA regarding the H-1B employee’s wages and working conditions, among others. The foreign teacher may be admitted for an initial period of three years with an extension of up to three years, for a total of six years. An H-4 dependent visa is available for the spouse and unmarried children under 21 which authorizes stay in the U.S. but not employment. The H-1B visa category is subject to a numerical cap of 65,000 visas every fiscal year. Filing for the fiscal year, which runs from October 1 to September 30, begins on April 1or six months before the fiscal year start. A few years ago, the H-1B cap was exhausted in the first week of filing. Not all H-1B petitions are subject to the cap, however. Workers hired by institutions of higher education or a related or affiliated nonprofit entity, or by a nonprofit research organization, or a governmental research organization, are not subject to the cap. The H-1B petition is filed by the employer on Form I-129. It is filed with the certified LCA, proof that the position qualifies as a specialty occupation, and evidence that the beneficiary teacher has the required degree and license to practice the occupation. J-1 Visa for Teachers and Professors/Research Scholars The J-1 visa is appropriate for a foreign national who comes to the U.S. temporarily for training, research or education, as a participant in an exchange visitor program. In order to qualify for a J-1 visa, the foreign teacher must be sponsored by a designated teacher exchange program which will screen and select the teachers and monitor their stay in the United States. Foreign teachers may qualify either as primary or secondary school Teachers or college or university Professors and Research Scholars. A foreign national in the Teacher exchange program must teach full time at a primary or secondary accredited educational institution; meet the qualifications for teaching in primary or secondary schools in their country of nationality or last residence; and have a minimum of 3 years of experience. The Teacher can stay in the U.S. for a maximum of three years under this program. The Professor category is appropriate for foreign nationals primarily teaching, lecturing, observing, or consulting at postsecondary accredited educational institutions. Research Scholars covers those primarily conducting research, observing or consulting in connection with research projects at research institutions, research facilities and similar types of institutions. The maximum period of participation for Research Scholars and Professors has been increased from three years to five years. Following completion of the exchange program, the J-1 visa holder must return to his/her home country for two years before they can transfer to an H or L nonimmigrant category or apply for permanent residence. If the two-year foreign residence requirement applies, a waiver is available under certain conditions. A J-1 visa holder’s spouse is eligible for a J-2 visa which gives authorization to work in the U.S. Other Nonimmigrant Categories A foreign teacher pursuing education in the United States may be able to teach or obtain practical training on an F-1 visa. Extremely well-qualified individuals or those who possess extraordinary ability in the field of sciences, arts, education, business or athletics may qualify for an O-1 visa. Teachers may also come to the U.S. on an R-1 visa for temporary employment by a religious organization in a religious vocation or occupation. Immigrant Visa Options for Teachers Foreign teachers can qualify for a permanent residence under several employment-based green card categories. FIRST PREFERENCE Foreign nationals who have extraordinary ability in the sciences, arts, education, business or athletics, or are outstanding professors and researchers may qualify for a green card under this category. The EB-1 category is for “priority workers” and the labor certification requirement does not apply to this preference. There is currently no waiting period for an immigrant visa under this category. Extraordinary Ability Aliens Teachers who have received national or international acclaim and can establish extraordinary ability may qualify for a green card under this category. There is no requirement for a labor certification. Neither is the worker required to have a job offer from a U.S. employer as long as the worker is entering the U.S. to continue work in the field in which he or she has extraordinary ability. The level of ability or expertise required indicates that the individual must be one of those few who have risen to the top of the field of endeavor. The foreign national must give proof of having won a major internationally recognized award, such as the Nobel Prize, or at least three of the following types of evidence:
Outstanding Professors or Researchers Professors or researchers may qualify under the EB-1 category if they are recognized internationally as outstanding in a specific academic field and have at least three years of teaching or research experience in the field. Documentation of at least two of the following types of evidence must be submitted:
While a labor certification is not required, the professor or researcher must have a job offer. The employer must offer the alien a tenured or tenure track teaching or research position in the alien’s field, as the case may be, or a research position having no fixed term and in which the employee will ordinarily have an expectation of permanent employment. For this category, the employer may be a university, institution of higher learning, or a department, division, or institute of a private employer if it employs at least three persons full-time in research activities and has achieved documented accomplishments in an academic field. It is also possible to offer a comparable position where the employer employs at least 3 full-time researchers and has demonstrated accomplishments in the research field. SECOND PREFERENCE Two types of workers are eligible for classification under the EB-2 category: exceptional ability aliens and advanced degree professionals. The EB-2 category is usually less backlogged than EB-3 except for nationals of some countries. A labor certification is generally required. The I-140 petition is filed by an employer, unless the alien is seeking an exemption from the job offer requirement by filing for a national interest waiver. A National Interest Waiver is granted if it is determined that the exemption from the job offer and labor certification requirements would be in the interest of the United States. Exceptional Ability Alien Teachers with exceptional ability in the sciences, arts or business are those who have a degree of expertise above that ordinarily encountered in his or her field. At least three of the following types of evidence must be submitted:
Advance Degree Professionals The EB-2 category also includes teachers who are members of the professions and who hold advance degrees. An advance degree refers to any U.S. academic or professional degree, or a foreign equivalent, above a bachelor’s degree level. The position must require at a minimum a professional with an advanced degree. Teachers with only a bachelor’s degree may still qualify for EB-2 classification if he or she has at least five years of progressive experience in the specialty. In such a case, the education and experience would be considered the equivalent of a master’s degree. Progressive experience refers to experience that reflects increasing levels of responsibility and knowledge in the specialty. THIRD PREFERENCE The EB-3 visa category is appropriate for professionals with only bachelor’s degrees in their fields. This category also includes skilled workers with at least two years of job experience or training, and unskilled workers for positions requiring less than 2 years of training or experience. For teachers, both labor certification and a job offer from a U.S. employer are required. The EB-3 category is more backlogged than other employment-based categories. The visa petition must be accompanied by proof that the foreign teacher has a U.S. bachelor’s degree or a foreign equivalent degree and that the occupation requires the minimum of a bachelor’s degree for entry into the occupation. |