Making Sense of the Different Employment Visa-types

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

2. Two Main Categories of Visas • Institution Sponsored • Self-Petitioned

3. Institution Sponsored • J-1 (Scholar/Professor; Short-term; and Specialist) • H-1B • TN – Trade NAFTA • O-1 • Permanent Residency

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

5. 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

6. 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)

7. 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

8. 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.

9. 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).

10. 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

11. 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

12. 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

13. 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.

14. 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)

15. DS-2019

16. J-1 Visa Stamp

17. H-1B Worker

18. 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

19. 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

20. 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

21. 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)

22. H-1B Receipt Notice

23. H-1B I-797 Approval Notice

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

25. TN – Trade NAFTA

26. 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

27. 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

28. TN I-94

29. TN I-94 Back

30. O-1 Aliens of Extraordinary Ability

31. 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

32. 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

33. 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.

34. O-1 Approval Notice

35. O-1 Approval for Consular Processing

36. Permanent Residency: The Green Card

37. 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

38. 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

39. 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

40. 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

41. 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)

42. I-140 Approval Notice

43. I-485 Approval Notice

44. Permanent Resident Card (Green Card)

45. Self-Petitioned Categories

46. 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)

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

48. 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

49. B-1/B-2 Visa Stamp

50. B-1 I-94 Card