It may only be November and most institutions are thinking about the end of the semester and the holiday break, so why a post on hiring and immigration? There are a myriad of reasons why institutions of education need to start thinking about these issues now but amongst the primary ones are: it is getting harder to find and attract reliable, qualified talent; it is the normal time when institutions begin to look at openings for next year and begin their recruitment cycles aimed at individuals graduating from their programs of study or looking to make a change in their current institution, position, or title; and breaks in the school year are an excellent time to review and update policies and procedures, including sponsorship of potential candidates for open positions at the institution.
Over the course of 2023, we have spoken with many school districts, charter schools, and private K-12 schools who previously did not sponsor individuals who required a work visa to be employed at their institution. Additionally, many colleges and universities that we have spoken to over this past year have been expanding their sponsorship criteria in response to a more difficult hiring market and a realization that immigration sponsorship can often be a wise investment in resources and talent (I am sure there are others but these have been the most often expressed in our conversations). So, what should school and colleges consider when implementing an “immigration sponsorship” policy? First and foremost, there needs to be an eye toward a well-thought-out policy with consistent application. Ad hoc policies and inconsistent application can be a recipe for discrimination disaster! Second, the policy should make clear whether the school is implementing a “blanket” sponsorship program, i.e., all positions across all departments, or whether the school is implementing a “selective” program that focuses on certain departments, certain positions, or certain classifications (i.e., faculty but not staff). Finally, the policy should make clear who is responsible for the costs of sponsorship – is it the District? The school or college? The Department? (Please note, it should not be the sponsored candidate as the government has made very clear that in H-1B and PERM scenarios, the cost of sponsorship is the cost of doing business that must be borne by the sponsoring employer). These costs, in most instances, can be spread out over several years for budgeting purposes and, with difficult to fill positions or exceptional candidates, the investment in the added expenditure of immigration sponsorship often times pays for itself.
After agreeing upon your policy, next comes understanding your options. The primary vehicles for hiring an international candidate at a school or college are the J-1, H-1B, and O-1 nonimmigrant statuses:
The H-1B is the immigration staple, but it is not without limitation. The first is that it only applies to professional positions in the United States – those that require at least a Bachelor Degree or the equivalent in a specific field of study related to the position. The second and perhaps more difficult hurdle to overcome is the H-1B cap and lottery. The annual cap on H-1Bs can present a major challenge to employers as each year’s quota of 86,000 new H-1Bs is used up very quickly. In the past several years, the demand for H-1B workers has greatly outpaced the H-1B quota/supply resulting in a selection rate of around only 20% during the most recent lottery. Cap availability is determined on the U.S. government’s fiscal year, which runs from October 1st to September 31st.
But all is not lost because not all H-1Bs are subject to the cap! Higher education institutions, non-profit organizations associated with higher education institutions (such as a public K-12 school or district), and nonprofit research organizations are all exempt from the cap. This exemption means that individuals sponsored by one of these organizations can apply for an H-1B without concern for the government’s annual lottery or fiscal year count. Additionally, any individual who has previously held H-1B status within the last 6 years is also exempt from the H-1B cap. If your organization is hiring an individual that currently works for another employer in H-1B status or has previously worked for an employer in H-1B status, your organization and the individual may be able to avoid the lottery as well. What does being exempt really mean? For organizations, it means, when they have located a qualified candidate whom they wish to hire, they can offer that individual employment without concern as to whether the H-1B would be available during that current time of year or not. And, they can focus on the individual, the individual’s qualifications, and their need whenever that need may arise since they are free to hire the H-1B at any time during the year without restriction.
The J-1 International Exchange Visitor is a complex and, potentially, robust category for schools and colleges. The diversity of options for educational institutions coupled with the speed, cost, and efficiency of the J-1 program often times provides an outstanding opportunity to recruit and hire international talent, which increases diversity, depth, and reach of the staff at an institution – an easy win-win!
Colleges and Universities – Research Scholars, Professors, Short-Term Scholars
The J-1 is intended for cultural exchange and enrichment. J-1s in higher education are generally used in two categories: Professors and Research Scholars – with the following requirements:
- Not be a candidate for a tenure track position;
- Not have participated in and completed a professor program within the last 24 months preceding the beginning date of their new program’s commencement;
- Not have participated in a J-1 program for all or part of the 12- month period immediately preceding the start date of a professor program unless he or she meet one of the following exceptions:
- The participant is currently in a professor program and is transferring to another institution in the United States to continue his or her current J-1 program;
- The participant’s prior physical presence in the U.S. on a J-visa program was less than six months in duration; and
- The prior participation was as a short-term scholar.
- Research Scholars
- Not be a candidate for a tenure track position;
- Not have participated in and completed a research scholar program within the last 24 months preceding the beginning date of their new program’s commencement;
- Not have participated in a J-Visa program for all or part of the 12- month period immediately preceding the start date of a research scholar program unless they meet one of the following exceptions:
- The participant is currently in a research scholar program and is transferring to another institution in the United States to continue their current J-1 program;
- Any prior participation was as a short-term scholar.
Additionally, institutions of higher education may also make use of the Short-Term Scholar J-1 program. To qualify as a Short-Term Scholar, the individual must be a professor or research scholar or someone with similar education and/or experience. As it implies, the Short-Term Scholar is designed for a visiting professor to spend a semester in residence at the institution. The maximum duration of stay is six months, and the Short-Term Scholar cannot be extended for any additional period of time. Additionally, a Short-Term Scholar is not eligible to apply for a change of status from J-1 to any other NIV category.
Schools – Teachers
The J-1 program can be a valuable tool for K-12 schools and districts. J-1 Teachers can enhance their professional skills, participate in cross-cultural activities in schools and communities, and bring to their home country valuable knowledge of different educational opportunities and learning models. To qualify as a J-1 Teacher:
- Meet the qualifications for teaching in a primary or secondary school in their country of nationality or last legal residence;
- Be currently 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: (a) have recently (within 12 months of application) completed an advanced degree; and (b) have two years of full-time teaching experience within the past eight years;
- Have a degree-equivalent to a U.S.-based Bachelor Degree in either Education or the academic subject field in which the J-1 intends to teach;
- Have a minimum of two years (24 months) of teaching or related professional experience;
- Satisfy the standards of the U.S. state in which they will teach;
- Be seeking to enter the United States for the purpose of full-time teaching as a teacher of record at a primary (including pre-kindergarten) or secondary accredited educational institution in the United States (pre-kindergarten teachers must teach full-time, and at the pre-kindergarten level, may teach only language immersion at an accredited host school);
- 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. After serving the 2-year home residency requirement, the individual could be eligible for a second 5-year J-1 Teacher program.
Though the O-1 is generally considered for scientists, athletes, and artists, it could be a potential option for professors, scholars, post-docs, teachers, and staff who have received national and international recognition and accolades from prestigious organizations. Additionally, 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.
USCIS defines “extraordinary ability” as having achieved a level of expertise that places an individual in the very top percentage when compared to others in the field. The applicant must provide extensive documentation to document certain requirements such as having won nationally recognized awards in the field, attaining a high salary, or having their work published in top publications in the field. The key to a solid O-1 case is defining the “field” of expertise. For example, it is much easier to demonstrate that an individual is one of the top social scientists in the world dealing with the impacts of gerrymandering in elections than it is demonstrating the individual is simply one of the top social scientists in the world. Be clear as to what your candidate’s field of expertise is before drawing any conclusions about whether they may qualify for an O-1.
As the job market continues to tighten and as schools continue to search for the best and brightest talent to fill open positions, immigration sponsorship must be considered as a valuable tool in the hiring managers toolbelt moving forward. Not only can it assist schools and colleges with attracting and hiring more qualified candidates, but it can also increase diversity, community, and globalization at the institution. These positives far outweigh any perceived negatives involving the financial costs of sponsorship that have, for too long, kept many institutions from seeking out potential international candidates.
We at FordMurray represent several colleges, universities, and K-12 institutions in policy development, policy refinement, SEVIS attainment and compliance, I-9 compliance, and immigration sponsorship. Our firm would be happy to speak with your organization about any or all of these as you look to enter into the world of international candidates or, if you are already there, as you look to enhance your current policies and programs.
To stay up-to-date on the latest immigration news and for more information, please be sure to visit our blog.