Visa Options and Immigration Strategies for Colleges and Universities

by Faegre Baker Daniels
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Faegre Baker Daniels

U.S. colleges and universities have many visa options that enable them to employ diverse and talented faculty from around the world. This article will introduce the primary nonimmigrant (temporary) visa categories used by U.S. colleges and universities to employ foreign faculty. The article will also provide key information about the permanent residency (green card) process. College and university employers typically employ faculty initially in a temporary nonimmigrant visa category. Thereafter, the college or university may begin working on a permanent residency case once the institution has determined that it wishes to employ the faculty member on a permanent basis.

Employment-Based Nonimmigrant (Temporary) Visa Categories

H-1B – Specialty Occupation

The H-1B visa is one of the most common visas for employing foreign faculty. The H-1B visa classification is for specialty occupations, which means occupations that require: (1) theoretical and practical application of a body of highly specialized knowledge; and (2) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum requirement for entry into the occupation. The foreign national must meet the requirements for the position, including having a bachelor's degree or higher. The employer must also demonstrate that it is offering the prevailing wage for the occupation in the proposed labor market. Higher education faculty positions typically qualify as “specialty occupations” under the H-1B rules.

A significant challenge for most employers seeking to sponsor an H-1B worker is the annual limit on the number of H-1B visa spots available. There is an annual cap of 65,000 new H-1B visas plus an additional 20,000 new H-1B visas for individuals who have graduated with a master’s degree or above from a U.S. university (for a total of 85,000). Employers can only file petitions for these cap-subject visa spots during the first few days of April each year. However, colleges and universities are exempt from the annual cap, so they may submit new H-1B petitions at any time during the year, without concern for whether the H-1B cap limit has been reached.

H-1B approvals are usually granted in three-year increments. A person is generally limited to a total of six years working in H-1B status, though additional time beyond six years may be available if a permanent residency (green card) case is underway.

We should note that scrutiny on H-1B petitions has increased dramatically in the past two years. The immigration service has issued Requests for Evidence (RFEs) asking for additional information at an unprecedented rate, causing processing delays and frustration for many H-1B employers and potential employees. The rate of denials has also increased.

J-1 Exchange Visitors

The goal of the J-1 exchange visitor visa program is for persons from other countries to come to the United States to learn about American culture and to share their culture with Americans. J-1 exchange visitors may come in many different categories, including teachers, students, trainees and au pairs. Colleges and universities often engage faculty in the professor, research scholar and short-term scholar categories.

As an initial step in the visa process, a J-1 exchange visitor requires a designated sponsor organization to issue a DS-2019 form. Many larger colleges and universities have gone through the process to become designated sponsor organizations authorized to issue DS-2019 forms to their faculty. Other colleges and universities will need to identify an appropriate third-party sponsor organization to issues DS-2019 forms for their faculty candidates. Colleges and universities can also take steps to become designated sponsor organizations if it seems they will be employing J-1 exchange visitors regularly.

Since the overall goal of the J-1 exchange visitor program is to promote the sharing of cultures, many J-1 visitors are required to return to their home country for at least two years after completing their U.S. exchange visit. Whether a person is subject to the two-year home residency requirement depends on various factors, including their country of citizenship, the subject matter field in which they are working and the source of funding for their exchange visit program. It may be possible to secure a waiver of the two-year home residency requirement which would permit the J-1 exchange visitor to change status to another nonimmigrant category such as H-1B or to eventually apply for permanent residency.

TN – Mexican and Canadian Professionals

The TN is a visa option for Mexican and Canadian citizens working in specified professional occupations, including college and university professors, medical professionals, scientists, researchers, etc. TN status is generally granted in three-year increments. There is no limit on the number of years one can work in TN status, though the employment must be temporary. The TN application process can be relatively quick, particularly for Canadian citizens, so it is a good alternative for faculty candidates from Canada or Mexico.

O-1 – Extraordinary Ability

Some faculty candidates may qualify for an O-1 visa, which is reserved for individuals of “Extraordinary Ability or Achievement.” This visa requires evidence that the candidate has received a major, internationally recognized award, such as a Nobel Prize, or evidence of at least three of the following:

  • Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor
  • Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field
  • Published material in professional or major trade publications, newspapers or other major media about the candidate and the candidate’s work in the field for which classification is sought
  • Original scientific, scholarly, or business-related contributions of major significance in the field
  • Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought
  • A high salary or other remuneration for services as evidenced by contracts or other reliable evidence
  • Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought
  • Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation

O-1 approvals are generally granted for an initial three-year period.

The permanent residency process usually takes at least a few years, so employers generally start the process within the first couple years of the employee’s temporary visa employment.

E-3 – Australian Professional

Australian citizen faculty candidates who otherwise qualify under the H-1B standards described above may seek E-3 status. Although infrequently used, employers should keep the E-3 category in mind for potential Australian candidates.

H-1B1 – Chile and Singapore Professionals

Faculty candidates who are citizens of Chile and Singapore who otherwise qualify under the H-1B standards described above may seek H-1B1 status. Although infrequently used, employers should keep the H-1B1 category in mind for potential Chile and Singapore candidates.

B-1 Visa - Business Travel

The B-1 visa is available to foreign nationals for temporary business visits to the U.S. The B-1 visa is available for business travel for a specific and limited period. Permissible business activities include, but are not limited to, consulting with colleagues and other faculty, participating in short-term training, attending professional conventions or conferences, or negotiating a contract. The maximum amount of time permitted in B-1 status on any one trip is one year. Individuals from certain countries may be eligible to enter the U.S. without a visa under the Visa Waiver Program.

B-1 visitors are prohibited from engaging in any hands-on, productive work. They may not be employed in the U.S. and generally may not be paid. However, under very limited circumstances, a B-1 visitor engaged in academic activities such as speaking or lecturing may be allowed to receive honoraria.

F-1 Students

Most foreign students in the U.S. have F-1 student visas and can work only in very narrow circumstances. F-1 students are generally allowed to work for one year after graduation in Optional Practical Training (OPT). They may work for any employer in OPT if the work is closely related to their field of study. Students in STEM fields may seek additional OPT work authorization for an additional 24 months in certain circumstances.

Permanent Residency (Green Card) Process

The above nonimmigrant visa categories are all temporary. A faculty member employed in one of these categories may be allowed to work for a few years in the United States. If the college or university wishes to employ the faculty member beyond the time limit of the nonimmigrant visa category, the college or university must sponsor the faculty member for permanent residency, commonly known as a “green card.” Permanent resident status authorizes a foreign national to reside and work in the U.S. permanently.

The permanent residency process usually takes at least a few years, so employers generally start the process within the first couple years of the employee’s temporary visa employment. Some of the temporary visa categories (such as TN) do not provide a good platform from which to seek permanent residency, so it is often necessary to first change the employee’s status to another visa category that is a good platform for permanent residency (such as H-1B).

There are generally three steps to the permanent residency process: (1) PERM labor certification, (2) I-140 immigrant visa petition and (3) I-485 adjustment of status application.

The PERM labor certification process requires the college or university employer to advertise and conduct a good faith recruitment effort to see if there are more qualified U.S. applicants available for the faculty position. The college or university employer must also demonstrate that it is offering the prevailing wage for the occupation in the proposed geographic location. The green card case can only proceed if the college or university employer can demonstrate that the foreign faculty member is more qualified than any U.S. applicant who applied for the position. The advertising and recruitment must be conducted according to strict requirements. It may be possible to avoid new advertising if the PERM application can be filed within 18 months of the decision to hire the foreign national and certain steps were taken during the recruitment process.

If PERM is approved, the employer then files an I-140 petition. The I-140 petition process confirms that the foreign national meets the requirements for the position and that the employer can pay the required salary.

After I-140 approval, depending on the foreign national’s country of birth, there may be a wait for a green card quota number to become available. The wait could be a few months or could extend to a few years or more. Once a quota number is available, I-485 adjustment of status applications are filed for the foreign national and immediate family members. Permanent resident status is granted and green cards are issued upon approval of the I-485 applications.

Some foreign nationals are eligible to skip the PERM labor certification step. Their green card cases start with an I-140 petition filing in either the Outstanding Professor/Researcher or the Extraordinary ability categories. The standards for these categories are high:

Outstanding Professor or Researcher: The candidate must demonstrate international recognition for outstanding achievements in a particular academic field. The candidate must have at least three years of experience in teaching or research in that academic area. The candidate must be pursuing a tenured or tenure track teaching or comparable research position at a university or other institution of higher education. Evidence must be submitted in at least two of the following categories:

  • Evidence of receipt of major prizes or awards for outstanding achievement
  • Evidence of membership in associations that require their members to demonstrate outstanding achievement
  • Evidence of published material in professional publications written by others about the candidate's work in the academic field
  • Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
  • Evidence of original scientific or scholarly research contributions in the field
  • Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field

Extraordinary Ability: The candidate must be able to demonstrate extraordinary ability in the sciences, arts, education, business or athletics through sustained national or international acclaim. The achievements must be recognized in the field through extensive documentation. The candidate must provide evidence in at least three of the following categories:

  • Evidence of receipt of nationally or internationally recognized prizes or awards for excellence
  • Evidence of membership in associations in the field which demand outstanding achievement of their members
  • Evidence of published material about the candidate in professional or major trade publications or other major media
  • Evidence that the candidate has been asked to judge the work of others, either individually or on a panel
  • Evidence of original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
  • Evidence of authorship of scholarly articles in professional or major trade publications or other major media
  • Evidence that the candidate’s work has been displayed at artistic exhibitions or showcases
  • Evidence of performance of a leading or critical role in distinguished organizations
  • Evidence that the candidate commands a high salary or other significantly high remuneration in relation to others in the field
  • Evidence of commercial successes in the performing arts

Securing approval to employ foreign nationals in the United States is becoming more difficult, but colleges and universities continue to enjoy a better position than employers in other sectors. With some forethought in recruiting and upfront strategy about appropriate immigration categories, colleges and universities can continue to hire talent from all over the world to enrich their campuses, improve the quality of academic program offerings and boost scholarship in many fields.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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