If a qualified job applicant is neither a U.S. citizen nor a permanent U.S. resident, known as a "green card" holder, most likely that individual will require a visa enabling him or her to live and work in the United States. Foreign visitors in the U.S. on a visa waiver program or B visitor visa are not entitled to be employed in the United States without obtaining a proper visa that authorizes employment. The visa options for visiting faculty are discussed below.
If your job applicant is neither a U.S. citizen or green card holder, then he or she can work in the U.S. if in valid F-1, or student visa, status and a recent graduate with at least a bachelor's degree from a U.S. university or college. This Optional Practical Training or OPT period is granted by the college or university from whence they graduated for one year after graduation. If the job applicant holds a U.S. bachelor's degree or higher in the so-called STEM majors (science, technology, engineering or mathematics) they may stay an additional 17 months, totaling 29 months before requiring a work visa.
If the job applicant is not OPT-authorized or is in possession of an expiring OPT, the prospective employer most likely should apply for an H-1B visa for the prospective employee who is presumably qualified for a "specialty occupation" because of the nature of the position to be filled. A "specialty occupation" is one that requires at least the minimum of a U.S. bachelor's degree or its foreign equivalent. This can be a combination of schooling and qualifying experience that must be professionally evaluated before a visa petition can be commenced. Depending upon the type of employer, this visa may be subject to an annual quota or cap, making the timing of the application important to coincide when the U.S. Citizenship and Immigration Service's (USCIS) fiscal year begins. As discussed below, some prospective employers are fortunately "cap-exempt."
If the prospective employer is not cap-exempt, there is a cap of 65,000 H-1B visas annually for bachelor's degree holders or the foreign equivalent. For those holding a master's degree or higher, there is an annual cap of 20,000 visas annually. Because the cap can adversely affect the hiring of foreign faculty, public academic institutions and nonprofit educational institutions of higher education beyond secondary school level are considered to be cap-exempt. The definition of "institution of higher education" comes from the Higher Education Act of 1965, which defines an institution of higher education as one that meets all of the following criteria:
- Admits students who have completed secondary school;
- Is licensed to provide education above the secondary school level;
- Provides educational programs for which a bachelor's degree can be awarded, or provides programs of not less than 2 years that receive full credit toward a bachelor's degrees;
- Is a public or nonprofit institution; and
- Is accredited or has been granted pre-accreditation status by a recognized accrediting agency.
Export Control Technology Restrictions Apply to Prospective Employers of H-1B Visa Holders
Effective late last year, the USCIS added an important requirement to obtain H-1B approval. Whenever a non-U.S. citizen or non-green card holder is exposed to technology that itself would require an export license were it to be exported under the relevant Export Administration Regulations and International Traffic in Arms statutes, then a "deemed export" occurs. If an employer knowingly allows an unauthorized deemed export, the employer may be fined civilly or even be criminally prosecuted.
As a result, the revised H-1B petition forms now include a certification by the prospective employer concerning the technology or technical data it will release or to which it will permit access by the prospective H-1B visa holder. This certification could well affect academic institutions that perform research in areas related to defense or having significant military applications. Technical data relating to these applications is included in the definition of a restricted export and therefore can apply to software.
It is important to be aware that university research where the university or its researchers accept restrictions on publication of scientific and technical information, or where the research is funded by the US government to which access and dissemination controls apply, may well be subject to export controls. However, information concerning general scientific, mathematical or engineering principles commonly taught in colleges and universities, information in the public domain, or fundamental research ordinarily published or shared broadly in the scientific community, are not considered to be technology or technical data requiring an export license.
H-1B visa holders and their employers have also come under recent scrutiny by the US immigration authorities if the H-1B visa holder is working at a location different from that of the employer that applied for the H-1B visa. In fact, some H-1B visa holders have been placed in expedited removal to their home country immediately upon arrival at a U.S. airport if the immigration authorities concluded that there is not the requisite employer-employee relationship which is indicated by direct supervision. Expedited removal carries with it a bar from returning to the U.S. for five years. While off-site employment is not forbidden, it is obviously critical to ensure that the requirements for H-1B visa status are met and maintained throughout the visa holder's stay to avoid this harsh outcome. Therefore, if your college or university has more than one campus where the H-1B visa holder may be working, there needs to be a labor certification done for each location as part of the H-1B process, and there must be proper supervision by the institution whose location is designated in the H-1B petition. In other words, one campus cannot apply for an H-1B visa for a foreign faculty member and then send him or her to another campus without certain steps taking place, both before the petition is actually filed with USCIS and once the individual comes to work in the U.S.
Additional work visas exist based upon the nationality of the individual for whom the visa is being sought. For Canadian and Mexican nationals, there is the indefinitely renewable TN visa for a designated list of professions of which a university "teacher" with at least a bachelor's degree is one. Under their respective country's Free Trade Agreement with the U.S., nationals of Singapore and Chile may qualify for the H-1B1 visa, which, like the H-1B requires the minimum of a U.S. bachelor's degree or its foreign equivalent. The H1-B1 visa is valid for 18 months and is renewable indefinitely. Both the TN and H1-B1 visa requires nonimmigrant intent, signifying that the visa holder must not intend to become a permanent U.S. resident, also known as a green card holder.
Qualified Australians are eligible for the country-specific E-3 visa which also requires the equivalent of a U.S. bachelor's degree. It is issued in two-year increments, is renewable indefinitely and is usually processed at a U.S. Consulate in Australia or the U.S. Embassy in Canberra. There are 10,500 E-3 visas available annually.
Outstanding individuals in their field of endeavor can qualify for the O visa, renewable indefinitely. The standard for an O visa approval by USCIS is high, but not insurmountable, with sufficient proof of sustained international or national acclaim. An international award such as a Nobel Peace Prize would suffice, but failing that, three of any of the proofs listed below are acceptable:
- Internationally or nationally recognized prizes or awards;
- Published material;
- Membership in an association that requires members to have made an outstanding achievement in their field;
- Original scientific, scholarly or business-related contributions of major significance in their field;
- Authorship of scholarly articles published in any type of mainstream media and/or professional journals;
- High salary or other type of compensation;
- Participation on a panel or as a judge for others' works; or
- Evidence of past employment for organizations or establishments that have a high reputation.
The J visa, or exchange visitor or intern visa, is useful as well. Teachers and fellows at universities are eligible for the J-1 visa for the duration of their stay. Like the TN and H-1B1 visa, the J-1 visa also carries strong nonimmigrant intent, and may require two years of foreign residency at the conclusion of the J-1 visa's period of authorized stay before the individual can return to the U.S. in a different visa category. However, there are ways to avoid the two-year foreign residency requirement if one of the following can be shown: possible persecution in the visa holder's home country, exceptional hardship on a U.S. citizen or permanent resident spouse or child, "no objection" by the J visa holder's home country's government (not available if funding was directly or indirectly from U.S. Government, and not available to J visa holders on graduate medical education or training), or a U.S. federal government agency requests a waiver.
Once a foreign faculty member is present in the U.S. on most nonimmigrant visas, unless eligible for permanent U.S. residence through a family member, your institution must sponsor the individual for permanent U.S. residence entitling them to the coveted green card in order to remain in the U.S. on a permanent basis. With the exception of an O visa holder, this will entail a recruitment process that must satisfy the U.S. Department of Labor that there are no available, qualified and willing US workers with the minimum education, training and/or experience needed to fill the position for which the foreign worker is being sponsored. Normally, no experience acquired in the position for which permanent residence is being sought can be a job requirement. Only if the U.S. Department of Labor is satisfied that there is no qualified worker for the position will it give its approval, known as labor certification, in order for your institution to apply to the USCIS for permanent U.S. residence for this employee.
One way to avoid the time consuming and potentially fatal labor certification process due to qualified U.S. workers applying for the position in question, is through the national interest waiver process. This requires that the application demonstrate that the benefit of this employee remaining in the U.S. as a permanent U.S. resident or green card holder is in an area of substantial intrinsic merit and that the benefit is national in scope. In meeting both of these standards, admission of the foreign applicant as a permanent U.S. resident must considerably outweigh the inherent national interest of protecting US workers' jobs. This third requirement can only be shown by the applicant's standing in his or her field, the quality of the evidence supplied, and even the difficulty in finding U.S. workers for that particular position. Additionally, since obtaining a national interest waiver has become increasingly difficult, it is important that the applicant's contributions be cited independently and not just endorsed by colleagues at the same institution where he or she works.
Jennifer Parser is an experienced immigration attorney whose biography can be seen at http://www.poynerspruill.com/people/Pages/JenniferGParser.aspx. She can be reached at email@example.com tel: 919-783-2955 for further information.
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