As an educator coming to the United States, an individual has several visa options to explore depending on their needs and circumstances. 

Can teachers qualify for non-immigrant visas?

Nonimmigrant visas are available for individuals that are in the U.S. on a temporary basis and are not seeking permanent residency.  In order to address the teacher shortages, as many as 10,000 foreign teachers are currently working in the public school systems on nonimmigrant visas.  Most teachers come in under the H-1B program, while the rest typically fall within the J-1 visa category.  However, a few may even qualify for F-1 student visas.

What are the requirements for an H-1B for a teacher?

• To obtain an H-1B visa, an individual must have specialized knowledge in a specialty occupation. 

• The individual must have at least a bachelor’s degree in a specific field, but might be able to substitute three years in the field as the equivalent of one year of college.  Typically, professors or teachers will meet this requirement because it is already part of the required background for their employment.  

• If a teacher requires licensing to teach at a particular school, the teacher will need to show possession of a license or present documentation from the licensing board that the teacher has met all of the requirements for the license and the only thing holding up issuance of the license is possession of a visa or social security number.

• However, this visa category is subject to a numerical cap that is often reached early in the fiscal year.  For FY2004, the number of applicants reached the limit in February. This is a major problem for teachers who do not plan early since the H-1B cap opens up in October each year and the school year starts earlier. Note, however, that schools and school systems that are affiliated with universities may be able to qualify for exemptions from the H-1B cap. Most school systems and many private schools are arguably affiliated with colleges since colleges with teaching schools will often have arrangements with school systems that involve sending student teachers into the school system’s schools. The USCIS has not opined on these arrangements, but given the teacher shortages and the President’s “No Child Left Behind” plan, it seems likely that the agency would take a flexible view.

• Individuals applying for an H-1B visa must obtain a labor condition attestation, or LCA.  A labor condition attestation requires evidence that (a) the wages are equal to or exceed the prevailing wage for the occupation and (b) the positions working conditions will not have an adverse affect on similarly situated U.S. workers.  The LCA must be presented to the teachers’ union if the school’s teachers have a union.

• Admission under an H-1B visa is limited to three years, but can extend to six years. 

• Under an H-1B, the alien may be seeking permanent resident while holding a nonimmigrant visa.

• Family members can come with the educator under the H-4 visa. They cannot work on an H-4 visa.

What are the requirements for a J-1 visa for a teacher?

• The J-1 visa is a visa category for exchange visitors specifically provided for four separate categories: professors and research scholars, teachers, short-term scholars, and specialists. 

• Teachers must be teaching full-time in a primary or secondary accredited educational institution for up to three years.

• A J-1 visa holder’s spouse, who would apply for a J-2 visa, can obtain permission to work through the USCIS.

• A reason for the popularity of this visa category is that there is no set limit on the amount of time that the visa holder can remain in the United States.  The J-1 visa holder can remain in the United States for various lengths of time, depending on the program’s duration. 

• One downfall to this visa category may be the two-year home residency requirement, which requires the visa holder to return to their home country for at least two years following the end of their stay in the United States.  However, not all J visa holders will be subject to the home residency requirement.  Also, if the applicant is subject to the requirement, there are a number of waivers available. 

• To qualify for a J-1, a teacher must be sponsored by a teacher exchange program. One example program is the Cordell Hull Teacher Exchange Programs (http://payson.tulane.edu/cordellhull/serv01.htm)

What are the requirements for an F-1 visa for a teacher?

• The F-1 visa is an option for teachers or professors if they are still finishing their education. 

• A requirement to obtain the F-1 visa is that the individual must be pursuing education in the United States at a qualified institution.

• There is no limit on the amount of time F-1 visa holders can remain in the United States, provided they are finishing their education.

• The requirements for an F-1 visa holder to work are strict.  The individual must be working on campus or on an extension of campus.  They cannot work off-campus unless expressly granted the opportunity to do so.

• The spouse of an F-1 visa holder, who will apply for an F-2 visa, can come to the United States, but cannot work.

• F-1 visas are sometimes used by student teachers that teach in laboratory schools at universities. Teachers can also get up to a year of practical training upon the conclusion of studies that would allow for working in a school as a teacher.

What are the requirements for a TN visa for a teacher?

The TN visa is for Canadian or Mexican citizens coming to work as college, seminary, or university teachers with a baccalaureate or licentura degree or any other profession that fits the lists of professionals in NAFTA.  It is not available to primary and secondary school teachers.

Are other categories available to teachers?

Teachers can potentially qualify for other categories. A teacher coming to the US for a short duration such as to attend a conference or observe at an educational institution in the US can potentially enter on a B-1 business visitor visa. Religious school teachers can potentially enter on R-1 religious worker visas. The H-2B visa for seasonal workers may be available to a teacher since the school year only lasts nine months. Foreign educational programs with branches in the US may be able to use the L-1 visa to transfer instructors to the US.  Certain extremely well qualified teachers may qualify for O-1 visas based on a demonstration of extraordinary ability in education.

Can teachers qualify for immigrant visas?

Immigrant visas are for individuals who are seeking permanent residency in the United States.  Teachers can qualify for several types of immigrant visas (commonly called “green cards.”)

What types of employment-based green cards are available to teachers?

There are five employment-based green card categories. One benefit of the five employment-based immigrant visa categories is that all are current.  There is no backlog as there is for family-sponsored immigrant visa categories (some family-based categories have waiting lists that are more than 10 years long).  Each of the following categories has a cap set at 40,000.

First Preference

• These visas are for aliens with extraordinary ability such as outstanding professors and researchers with substantial accomplishments or recognition and at least three years of experience in teaching or research in the academic arena.

• Applicants do not need to do a labor certification, nor do they need to have secured employment in the U.S. prior to applying.

Second Preference

• This visa category is for professors holding advanced degrees or their equivalent or who, because of their exceptional ability in the sciences, arts, or business, will substantially benefit the national economy, cultural, educational interest or welfare of the U.S.

• This category requires a job offer and a U.S. employer must sponsor the application. 

• Labor certification is also required unless the individual can show that he or she will provide substantial benefits to the U.S. economy.  Under those circumstances, the government can waive the certification requirement. If a labor certification is required, an employer will have to undertake a recruitment process to show no US workers are immediately available with the minimum qualifications for the job.

Third Preference

• This visa category is for professionals who hold only baccalaureate degrees and will work as skilled or unskilled workers to fill positions for which there is a shortage of American workers. It is also available to skilled workers who are working in jobs requiring two or more years of experience.

• A U.S. employer must make a job offer and sponsor the application for an individual to apply under this category.

• Labor certification is required.

• The unskilled cap for this category is 10,000, thus leaving the door open for 30,000 skilled professionals that fulfill the requirements of the third preference visa category.

An educator should also consider possible family sponsorship, diversity, or other visa categories depending upon their qualifications.  The above-listed visas are the most commonly used for educators.

Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.