As another school year is about to begin, many schools are facing an all-too-common issue right now – not enough employees to fill open positions. And, in schools who are educating, housing, feeding, and caring for our children, these open positions are hyper critical, and this shortfall is a big problem facing too many school districts, private schools, charter schools, and other K-12 educational institutions throughout the United States. One way these schools can combat this growing problem is by seeking a more global pool of candidates – expanding their search beyond not just state borders but national borders. As part of the international recruitment of staff, schools must consider the immigration options for hiring these individuals and this post seeks to provide a brief background regarding those options.
The H-1B for Specialty Occupations. The primary option for hiring teachers, administrators, and other professional staff within a school is the H-1B for specialty occupations. However, the H-1B has certain limitations for schools that a hiring institution must be aware of as it traverses the international recruitment of teachers and other professionals. The first is that it only applies to “professional” positions in the United States – the position must require at least a Bachelor Degree or the foreign equivalent in a specific specialty to enter into that occupation, and the individual must possess at least a Bachelor Degree or the foreign equivalent in that field or a related field. The second and perhaps most difficult hurdle is the H-1B cap or “lottery”. H-1Bs are limited to 86,000 “new” employees each fiscal year, i.e., for those individuals who have never held H-1B status or at least have not held H-1B status within the last 6 years preceding the application. The government’s fiscal year begins on October 1 and ends on September 30. In the past several years, the demand from employers for H-1Bs has greatly outpaced the supply. As such, the USCIS implemented a lottery registration system to assign the available H-1B numbers. In March, the USCIS opens a registration portal allowing employers to sign-up qualified individuals and positions. Once the registration portal is closed, the USCIS then runs a random selection of the 86,000 available H-1Bs and notifies the “winners” that they may file their H-1B Petitions at that time. The selection rate for the most recent H-1B lottery was less than 20%, leaving employers, including many schools, to look for alternative solutions. Though we recommend that if you are a cap-subject school, i.e., not exempt as discussed below, you should register qualified candidates for the lottery, we also explore alternative options for hiring these candidates below.
Is your school subject to the H-1B Cap? Thankfully, schools can first look to see if they are even subject to the annual lottery as not all candidates are subject to this annual limitation. For example, if the school is hiring an individual already employed in the U.S. on an H-1B or if that individual has previously been employed in the U.S. under an H-1B status within the last 6 years, that individual is NOT subject to the cap and the school can feel free to sponsor the individual for an H-1B without fear of the lottery. Another way for a school to avoid the H-1B lottery is to be a non-profit organizations that is associated with an institution of higher education. Many schools partner with local colleges or universities in allowing student teachers from the institution’s education program to teach at the school for a semester or collaborating on joint-research or teacher education programs or in other manners and means. Under current regulations, if your school is not-for-profit and has an agreement like this in place with a college or university, it may be considered “cap exempt” and, therefore, can file an H-1B without restriction of the annual lottery.
What if your school is subject to the H-1B Cap? Please download our H-1B Guide for Employers at https://fordmurraylaw.com/featured-guides/guide-h-1b-visa-sponsorship/ for more information on the process, timelines, and procedures.
Often times the schools we consult with ask the same question – we are not cap exempt so what are the options beyond the H-1B? Our response to this question is the outline below:
J-1 International Trainee. Schools can hire teachers from outside of the U.S. and provide them an opportunity to teach in accredited K-12 school provided that the individuals meet certain criteria and qualifications:
- The candidate must currently be qualified as a “teacher” in K-12 schools in their country of nationality or last legal residence;
- The candidate must either be working as a teacher in their home country or country of legal residence at the time of application, or, if not working as a teacher, have recently (within 12 months of the application) completed an advanced degree and (b) have two years of full-time teaching experience within the past eight years;
- The candidate must have a degree that is equivalent to a U.S. Bachelor Degree in Education or the academic subject field in which the candidate is hired to teach;
- The candidate must possess at least two years (24 months) of teaching or related professional experience;
- The candidate must meet the standards of the U.S. state in which they will teach;
- The candidate must be seeking to enter the United States for the purpose of full-time teaching as a teacher of record at a K-12 accredited school in the United States; and
- The candidate must possess sufficient proficiency in the English language.
The initial J-1 status for a teacher is valid for up to three years. During the third year, teachers who remain in good standing may be eligible to apply for a two-year extension, for a total of a five-year stay in the United States. At the end of the J-1 program, teachers are expected to return to their home countries to fulfill a two-year home residency requirement. Please note, this two-year home residency requirement, unless waived, must be fulfilled before the candidate can change status or become a permanent resident (green card holder) in the United States.
TN for Professionals who are citizens of Canada or Mexico: The TN visa provides schools with an avenue for hiring “professional workers” from Canada or Mexico. However, the TN has limitations. First, the TN is limited to those occupations listed in the Appendix to NAFTA. For schools, the primary limitation is only teachers at the college level or qualified for a TN. However, there are some occupations that could still be beneficial to schools including: Librarian–M.L.S., or B.L.S. (for which another Baccalaureate or Licenciatura Degree was a prerequisite), Social Worker–Baccalaureate or Licenciatura Degree, Dietitian–Baccalaureate or Licenciatura Degree; or state/provincial license, or Registered Nurse–state/provincial license or Licenciatura Degree. Second, the TN visa is a “pure” nonimmigrant visa, meaning the pathway to U.S. permanent residence may require additional steps or unusual measures during the process. Finally, the TN is valid for a three-year period. However, TN visas can be extended, in theory, indefinitely, in three-year increments. In practice, the TN is usually valid for about 9 years before the government begins to question more closely whether the individual has an intent to return to their home country, thereby maintaining a proper nonimmigrant intent.
E-3 for Professionals who are citizens of Australia: The E-3 is similar to an H-1B in that it has the same basic requirements, i.e., the position offered must require at least a Bachelor Degree or the equivalent in a specific field and the individual must hold at least a Bachelor Degree or its equivalent in that field or a related field. Additionally, like the H-1B, the E-3 also requires the filing of a Labor Condition Application (LCA) confirming the employer will pay the prevailing or actual wage and satisfy other LCA requirements. Finally, like the H-1B, the E-3 is capped at 10,500 available visas per fiscal year, though, this annual cap has never been reached since the E-3 was introduced. Unlike the H-1B, the processing of the E-3 is simplified, with giving Australian citizen applicants the ability able to apply directly at a U.S. Embassy or Consulate. Furthermore, the E-3 is generally valid for two years, initially, and can be extended indefinitely, in theory. In practice, the E-3 is usually valid for about 8-10 years before the government begins to question more closely whether the individual has the proper nonimmigrant intent. This status could be a valuable tool for schools recruiting teachers and other professionals from Australia.
H-1B1 for Professionals who are citizens of Singapore or Chile: The H-1B1 is similar to an H-1B in that it has the same basic requirements, i.e., the position offered must require at least a Bachelor Degree or the equivalent in a specific field and the individual must hold at least a Bachelor Degree or its equivalent in that field or a related field. Additionally, like the H-1B, the H-1B1 also requires the filing of a Labor Condition Application (LCA) confirming the employer will pay the prevailing or actual wage and satisfy other LCA requirements. Finally, like the H-1B, the H-1B1 is capped at 6,800 available visas per fiscal year (5,400 for citizens of Singapore and 1,400 for citizens of Chile), though, this annual cap has never been reached since the H-1B1 was introduced. Unlike the H-1B, the processing of the H-1B1 is simplified, with Chilean or Singaporean citizen applicants able to apply directly at a U.S. Embassy or Consulate. Furthermore, the H-1B1 is generally valid for one year, initially, and can be extended indefinitely, in theory. In practice, the H-1B1 is usually valid for about 8-10 years before the government begins to question more closely whether the individual has the proper nonimmigrant intent. This status could be a valuable tool for schools recruiting teachers and other professionals from Singapore and Chile.
O-1 for individuals of extraordinary ability: Though the O-1 is generally considered for scientists, athletes, and artists, it could be a potential option for teachers who have received national and international recognition and accolades from prestigious organizations and recognized bodies as the O-1A category specifically calls out “education” as a field of recognition. For schools who attract an award-winning teacher from their home country, the O-1 should be viewed as a potential option. The O-1 is generally valid for an initial period of three years and then can be extended, indefinitely, in one-year increments. In practice, the O-1 is usually valid for about 10-12 years before the government begins to question more closely whether the individual has the proper nonimmigrant intent.
As the teacher and administrative shortage continues to grow, schools will need to expand their recruitment efforts beyond U.S. borders and with so many countries outside of the United States having strong Bachelor and Master Degree in Education programs, there is a vast pool of applicants ready to fill these needs. Schools that plan well, recruit well, and strategize well, can develop budgets to accommodate these international applicants, expand their candidate pool, and continue to provide quality educational programs to the children within their district or region. Attorneys at FordMurray have assisted school districts, charter schools, parochial school, and private schools of all sizes in securing and retaining teachers and other professionals within the K-12 arena from outside of the United States. If you have additional questions or want to learn more about the visa programs that fit your needs, please contact Russell C. Ford at russell@fordmurraylaw.com or Julia K.E. Broulidakis at julia@fordmurraylaw.com for a complimentary consultation.
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