Making Sense of the Different Employment Visa-types Charter Morris International Programs Advisor University of Mississippi February, 22 2007.

Making Sense of the Different Employment Visa-types

Charter MorrisInternational Programs AdvisorUniversity of MississippiFebruary, 22 2007

Two Main Categories of Visas

Institution Sponsored Self-Petitioned

Institution Sponsored

J-1 (Scholar/Professor; Short-term; and Specialist)

H-1B TN – Trade NAFTA O-1 Permanent Residency

J-1 Scholar/Professor; Short-term; and Specialist

J-1

There are many J-1 Exchange Visitor Categories

The three main Categories of institution sponsorship are: J-1 Research Scholar/Professor J-1 Short-Term Scholar J-1 Specialist

Each category has special regulations and limitations

J-1 Basic Requirements

Intent to pursue appropriate activity (such as research or teaching)

Intent to return to home country (as determined by consular officer)

Sufficient funding for program Appropriate background for program activity

(i.e. the J-1 Visitor meets appropriate degree requirements)

Adequate English proficiency (as determined by the host department or by the institution; suggested tests include the TOEFL or IELTS exams or at least a review of written and oral skills)

J-1 Research Scholar/Professor

Cannot be a candidate for tenure Limited to 5-years of maximum stay Requires a minimum stay of 3 weeks Department pays no immigration filing fees University can sponsor Scholar/Professors

who are self-funded or funded by outside agencies, funding can also be split between department and outside agency

Perfect for temporary instructor positions or for research positions and for visiting professors on sabbatical

J-1 Scholar/ Professor 12-month bar 12-month bar- The 12-month bar prevents

someone from becoming a J-1 Professor/ Research Scholar for 12 months following any previous J participation (including J-2 dependent status)

No 12-month bar if the person is transferring from another J-1 sponsor, or if the person's presence in the US on a J program was less than six months, or if the person's presence was as a J-1 Short-Term Scholar.

J-1 Scholar/ Professor 24-month bar

24-month bar- The 24-month bar for repeat Professor/Research Scholar requires that there be a period of at least 24 months between each stay as a J-1 Professor or J-1 Research Scholar.

The 24-month bar is not the same as the 212(e) Rule (2-year home residency requirement).

J-1 Short-Term Scholar

Cannot hold a permanent position or be a candidate for tenure

Limited to 6-months of maximum stay Department pays no immigration filing fees University can sponsor Scholar/Professors

who are self-funded or funded by outside agencies, funding can also be split between department and outside agency

Perfect for very short research projects or for visiting lecturers

Benefit of Short-Term Scholar

There is no 12-month or 24-month bar for Short-Term Scholars to return as J-1 Research Scholars/Professor

No minimum stay requirement

J-1 Specialist

Cannot hold a permanent position or be a candidate for tenure

Limited to 12-months of maximum stay

Department pays no immigration filing fees

Perfect for specialty occupations such as Coach or Athletic Trainer

J-1 Specialist Limitations

Specialists are subject to the 12-month bar from beginning a J-1 Research Scholar/Professor program.

Specialists are not subject to the 24-month bar.

How to sponsor a J-1

Institution must have SEVIS Authorization for J-1 Scholars/Professors, Short-Term Scholars, and/or Specialists

RO/ARO will issue a DS-2019 to the incoming scholar

Good to have a standard welcome letter and packet of information

Incoming J-1 will pay SEVIS Fee and apply for J-1 Visa (changing status in the U.S. is possible)

DS-2019

J-1 Visa Stamp

H-1B Worker

H-1B Overview

Can hold a permanent position and be a candidate for tenure

Perfect for any permanent position or tenure-track position

Limited to 6-years of maximum stay Job must require at least a

bachelor’s degree

H-1B Overview Continued

Has a minimum salary requirement (based on both the actual wages paid by the institution and the prevailing wage determined by the Department of Labor)

Requires approval from US Citizenship and Immigration Services which can take several months unless Premium Processing is used

H-1B Filing Fees and Obligations

Institution should pay filing fees: $190 I-129 Fee, $500 New Application Anti-Fraud Fee, and an optional $1000 Premium Processing Fee

Department agrees to employ the international employee for the entire period requested on the H-1B application; early termination requires the department to pay the return flight costs for the employee

Filing and H-1B

Main documents to file are the I-129 and an approved Labor Condition Application (ETA 9035)

Must also submit all supporting documents from the int’l employee

Department must maintain a public inspection file, which includes the LCA, prevailing wage, actual wage, and proof of the posting of LCAs (even if done through an attorney)

H-1B Receipt Notice

H-1B I-797 Approval Notice

H-1B Approval Notice (I-94 Card)

TN – Trade NAFTA

TN Visa

Cannot hold a permanent position or be a candidate for tenure

No maximum for TN, but limited to 1-year increments of employment approval

Only available to citizens of Canada and Mexico in certain areas of employment (Appendix 1603.D.1)

Perfect for temporary and non-tenure instructor positions or for research positions

TN Applications

Most TN’s can be processed outside of the U.S. with a detailed letter of employment and proof that the job falls into the one of the areas of employment (Appendix 1603.D.1)

For changes or extensions for TN within the U.S., institution pays filing fees for TN applicants within the United States: $190 I-129 Fee and an optional $1000 Premium Processing Fee

TN I-94

TN I-94 Back

O-1 Aliens of Extraordinary Ability

O-1

Can hold a permanent position and be a candidate for tenure

Limited to 3-years of initial stay, with 1-year extensions possible

Department pays filing fees: $190 I-129 Fee and an optional $1000 Premium Processing Fee

Department agrees to employ the international employee for the entire period requested on the O-1 application; early termination requires the department to pay the return flight costs for the employee

Requires a lot of paperwork and documentation from the department and applicant

Why Pursue O-1

H-1B is often much easier to file and to renew

Primary use is for those who are ineligible for H-1B-status because of a 212(e) two year home residency requirement which cannot be waived or for those who have used the full six years of H-1B eligibility

What is involved in filing O-1

Uses the I-129 (like the H-1B), but does not require the prevailing wage and LCA form

Documentation is much like the Permanent Residency – EB1 Outstanding Researcher/Professor Category

According to 8 C.F.R. § 214.2 (o)(5)(i), the institution must consult with an appropriate U.S. peer group and obtain a written advisory opinion regarding the nature of the work to be done and the O-1 applicant’s qualifications for the position.

O-1 Approval Notice

O-1 Approval for Consular Processing

Permanent Residency: The Green Card

PR Basics

Int’l employee must hold a permanent position or be a candidate for tenure

Requires a lot of paperwork and documentation from the department and applicant

Perfect for any permanent position or tenure-track position; also perfect transition for H-1B employees who are nearing the end of their H-1B eligibility

Which PR Petitions Are Sponsored

In most cases, Universities only sponsor PR Petitions that are based on employment

EB-1 Outstanding Researcher/Professor

EB-2 Advanced Degree Holders EB-2 Exceptional Ability in the

Science, Arts, or Business EB-3 Professional or Skilled Worker

What it takes to file a PR

For labor-based petitions such as the EB-2 and EB-3 categories, Institution must file through PERM with the Department of Labor (even if filing through and attorney)

For the EB-1 Outstanding Researcher/ Professor category, PERM is not necessary

Filing PR – The I-140

After labor approval with PERM for EB-2 or EB-3 categories or when int’l employee has submitted all evidence for an EB-1 Outstanding Researcher/ Professor case, institution can file an I-140 Petition for Alien Worker

I-140 filing fee is $195

Other steps for PR

For those employees who are getting their PR in the U.S., they must file the I-485 Application to Register Permanent Residence or Adjust Status and supporting documents

UM does not process the I-485 or other forms for employees nor pay for the filing fees, though we will submit the forms (such as with concurrent filing)

I-140 Approval Notice

I-485 Approval Notice

Permanent Resident Card (Green Card)

Self-Petitioned Categories

Self-Petitioned Employment

B-1/B-2 or Visa Waiver F-1 OPT F-1 CPT J-1 Student Academic Training EAD Employment Authorization

Cards Permanent Residency (non labor-

based)

Visitor’s Visa: B-1/B-2 or Visa Waiver

Visitor’s Visa: B-1/B-2 or Visa Waiver

Cannot hold any kind of position of employment

Institution pays no immigration filing fees Stay is limited Can receive honorarium and

reimbursement for travel expenses in limited circumstances

Perfect for a guest lecturer or contractor coming to a school for less than 9 total days

B-1/B-2 Visa Stamp

B-1 I-94 Card

B-1/B-2 Visa Card

Visa Waiver – WB/WT

F-1 Optional Practical Training

F-1 OPT

Can hold a permanent position and be a candidate for tenure

Limited to 1-year of authorization, work must be in a field related to the student’s major

Primarily used by recent college graduates

F-1 student must have the employment authorization card before beginning work

Perfect as a transition work authorization, F-1 OPT holders can change status to J-1, O-1, or H-1B

Filing for OPT Benefits

F-1 student must file for the OPT with his/her College or University

F-1 student files an I-765 along with an I-20 requesting OPT authorization

Institution pays no immigration filing fees

OPT Card

F-1 I-20 with OPT Authorization

F-1 Visa Stamp

F-1 I-94

F-1 Curricular Practical Training

F-1 Curricular Practical Training

Should NOT hold a permanent position or be a candidate for tenure

No maximum for CPT, but limited to 1-year of authorization at a time

CPT must be done during degree program Work must be in a field related to the

student’s major Primarily used by students to fulfill

practicum or internship requirements Perfect for internships and short-term

research

Curricular Practical Training Authorization

F-1 student must file for CPT Authorization with his/her College or University

F-1 student must have the CPT Authorization on his/her I-20 before beginning work

Institution pays no immigration filing fees

Page 1 of I-20 with CPT Authorization

Page 3 of I-20 with CPT Authorization

J-1 Academic Training

J-1 Academic Training

Can hold a permanent position and be a candidate for tenure

Limited to 18-months of authorization (36-months for a postdoctoral researcher), work must be in a field related to the student’s major

Primarily used by recent college graduates, can also be used by students to fulfill practicum or internship requirements

Perfect as a transition work authorization, some J-1 Academic Training holders can change status to O-1 or H-1B

Filing for Academic Training

J-1 student must file for the Academic Training with his/her College or University

J-1 student must have Academic Training approval on institution that sponsored the DS-2019 before beginning work

Academic training does not show on the DS-2019. The RO/ARO has to approve the training in the form of a letter

Institution pays no immigration filing fees

EAD Employment Authorization Card

Employment Authorization Document

EAD Cards can be issued for many different reasons.

Common authorization areas are: F-1 OPT J-2 Employment Authorization Pending PR Adjustment Asylee Refugee

EAD Validity

EAD Cards are only valid for work for the dates printed on a card.

Work must stop when the card ends.

Renewals and extensions of cards are only valid for work when the new card has been received (not with a receipt notice or email notification)

EAD Card

Permanent Residency Not Based On Employment

PR Self-Petitioned

In PR cases that are not based on employment, the international employee can self-petition

Common areas for self-petitioned cases: National Interest Waiver (EB-1) Marriage Relation to a U.S. Citizen or Permanent

Resident Diversity Visa Lottery

Important Web Resources

USCIS (contains info on all visa types and petitions) – www.uscis.gov

SEVIS - https://egov.ice.gov/sevis/ J-1 Information -

http://travel.state.gov/visa/temp/types/types_1267.html

F-1 Information - http://travel.state.gov/visa/temp/types/types_1268.html

Important Web Resources

Case Status Page - https://egov.immigration.gov/cris/jsps/index.jsp

Visa Bulletin (for PR) - http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

Foreign Labor Certification (For LCA’s, PERM, Etc.) - http://www.foreignlaborcert.doleta.gov/

Important Web Resources

Online Wage Library (for determining prevailing wages) - http://www.flcdatacenter.com/OesWizardStart.aspx

Visa Policy - http://www.unitedstatesvisas.gov/visapolicy/index.html

Any questions?