H-1B Visa

This visa category applies to a foreign national who wishes to perform services in a specialty occupation on a temporary basis. International teachers in the U.S. on a temporary employment usually have this visa. In order for a U.S. school employer to hire an international teacher with this visa program, the teacher must meet one of the following criteria:

Requirements:

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Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position offered, such as teacher, educational administrator, special education.

H-1B Limitations

The H-1B visa has an annual numerical limit of 65,000 visas each fiscal year, as mandated by Congress. In addition, 20,000 visas are separately reserved and provided for the foreign national applicants with a U.S. Master’s degree or higher.

Because it is a convenient benefit to work in the U.S. on a temporary basis, the H-1B visa is one of the U.S. visas most in demand with foreign professional workers. Such a great number of visa applications are filed in the first week of April of each year (the annual application time) that it results in filling the H-1B visa cap.

When the number of applications filed is greater than the numerical limit, the government agency in jurisdiction (USCIS) randomly selects, by its computerized “lottery” system, 65,000 applications submitted by regular applicants and additional 20,000 applications by advanced degree applicants.
Due to the numerical limitation and unpredictable outcome from the lottery system, some of U.S. employer schools seek special H-1B visas, exempt from the visa cap (discussed below).

Because the H-1B visa cap has been reached too soon in recent years, highly qualified foreign teachers often get disappointed by losing their opportunities to work in the U.S.

Therefore a significant number of U.S. schools are now seeking an exemption from the H-1B visa cap, which allows for the employer to hire a qualified foreign teacher anytime throughout the year since the school is thereby exempt from the numerical limitation and the annual application time (April each year).

There are 3 types of employer organizations that could seek the H-1B cap exempt work visa: (a) an accredited college or university, (b) a nonprofit organization affiliated with an accredited college or university, and (c) a nonprofit or government research organization.

Teachers Council has been successful cooperating with many schools in order to establish an H-1B exempt status to hire teachers, since most schools are public and, therefore, qualify as a nonprofit organization and have relationships with colleges and universities.

Application Process:

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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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