H-1B Visa

The H-1B Specialty Occupation Visa category applies to foreign nationals who wish to perform services in a specialty occupation on a temporary basis in the US. International teachers in the US on temporary employment usually have this visa.

Requirements:

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The Job Position in teaching must require that the candidate possesses a minimum of a Bachelor’s degree or higher in Education or fields related to their teaching specialty.

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The Teacher must meet the requirements by possessing the required degrees and certificates as specified in the Job Position.

H-1B VISA CAP

The H-1B visa has an annual numerical limit (“cap”) of 65,000 visas each fiscal year, as mandated by Congress. In addition to this, 20,000 visas are separately reserved for foreign national applicants with a Master’s degree or higher, acquired in the US.

The H-1B visa is one of the US visas most in demand with foreign professional workers. Because such a great number of visa applications are filed at the beginning of the annual application time, (the first week of March), Congress has implemented an H-1B visa cap. If more than 65,000 applications are filed, a “lottery” system goes into effect. The USCIS randomly selects by computer, 65,000 applications submitted under a regular application and an additional 20,000 applicants who qualify for the US Master’s or higher degree allocation.

SPECIAL EXEMPTION FROM THE H-1B VISA CAP

Due to the numerical limitation and unpredictable outcome of the lottery system, qualifying US employer schools may seek special H-1B visas exempt from the visa cap.

Furthermore, US schools that qualify for the special visa cap exemption, can hire qualified foreign teachers anytime throughout the year, because it no longer holds subject to the annual (March) application time.

There are 4 types of classifications that can qualify a school as a cap-exempt H-1B employer: to be- (a) An accredited college or university, (b) A nonprofit organization affiliated with an accredited college or university, (c) A nonprofit or government research organization, or (d) A nonprofit entity that has signed an affiliation agreement with a nonprofit institute of higher education.

This, being a highly technical area of law, usually requires the assistance of a qualified immigration attorney to prepare and file the special cap-exemption application.

The most common classification that schools use to qualify for cap-exemption is to sign an affiliation agreement of an active working relationship with a college or university. Teachers Council has worked successfully with many schools to establish their H-1B cap-exempt status.

The H-1B Visa Petition Process with the Government Agencies:

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Step 1

Labor Condition Application (LCA): Employer submits LCA to the U.S. Department of Labor for certification. The certification usually takes 7 days. The purpose of this certification process is to ensure that hiring a foreign worker will not adversely affect the existing working conditions of the U.S. workers. LCA requires the employer to attest a set of its obligations to ensure the fairness of the U.S. labor market, such as to pay at least the prevailing wage to the foreign worker.

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Step 2

Petition for Nonimmigrant Worker: Upon receiving the LCA certification, the Employer needs to submit a Form I-129 Petition for Nonimmigrant Worker on behalf of the foreign worker. In this petition, the employer must prove that the position offered is of a specialty occupation and that the beneficiary teacher is qualified to perform the duties at the position.

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Step 3

Application for the Visa Stamp / Change of Status: After the Employer secures (with help from the immigration attorney) the approval of its visa petition, the beneficiary teacher applies for the H-1B worker status, so that the teacher can enter the U.S. and begin work at the employer school. If the teacher is already in the U.S., the teacher will be given the teaching status automatically by the approval of the employer’s visa petition. If the teacher is outside the U.S. at the time of application, the teacher must submit a Form DS-160 Application for Nonimmigrant Visa to have their passport stamped with the visa and to travel to the U.S. for work. The retained attorney prepares and files the necessary documents for the teacher and the school.

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