Non-Immigrant Visa Categories
The following are the Visa categories most appropriate for an employee in a university:
- H-1B Status (Non-Immigrant/Immigrant Worker)
- Optional Practical Training Status (F-1 OPT)
- TN Status (Trade NAFTA Approved Occupation)
- O-1 Status (Persons of Extraordinary Merit)
- J-1 Status (Exchange Vistor/Visiting Scholar)
H-1B status is the appropriate status for any foreign national who is coming to the U.S. or is already in the country and who has been hired to perform services in a specialty occupation. A specialty occupation is defined as one that requires an employee to “possess high education usually reflected in at least a 4-year degree, technical training, specialized experience or exceptional ability” needed to meet the standard requirements of the position.
It is typical for an international employee to begin work at BGSU in the H-1B non-immigrant status even though the university may have the intention to retain the individual if approved for tenure. The H-1B status does allow for “dual intent,” meaning that the employee while working under non-immigrant H-1B status is allowed to be sponsored to pursue legal permanent residency.
The maximum period of time an individual may remain in the U.S in H-1B status is six (6) years, typically in 3-year increments. H-1B status is employer-specific, however, so individuals can’t automatically transfer an approved H-1B petition to another employer. It is true that once a person has been approved to work in H-1B status, they are eligible to “port” (transport) the status to a new employer as long as the new position is similar to the one previously held. While waiting for the new H-1B petition to be approved for the new employer, the international is allowed to work; if the new employer petition is denied, the international must stop working immediately, and the employer must take the individual off payroll.
What does this mean to BGSU? If an international is hired who already is in H-1B status for a similar position, the person may begin work here immediately and continue working pending the filing and approval of an H-1B specific to BGSU.
It is the hiring unit’s responsibility to cover the costs of any visa petitions filed on behalf of an international hire. For an H-1B visa, the filing fee for an H-1B petition is currently $960, including $460 filing fee and $500 fraud-prevention fee. If there is a pressing need to obtain a petition decision in a short period of time, Premium Processing is available for an additional $1,410. The cost of Premium Processing ($1,410) may be paid by the employee.
New faculty or staff hires who have just completed or are in the process of completing their degree programs should be eligible for a one-year (or three-years for STEM students) extension on their F-1 student status, known as Optional Practical Training (OPT). This status allows students to work in a position directly related to their field of study.
Internationals appointed during the final year of their degree program should be directed to the office on their campus that handles immigration for international students. There they will be given instructions on how to apply for OPT. It is the students’ responsibility to submit the application and pay the required fee. It is their university, not BGSU, that “sponsors” the year of OPT. When the student has been authorized to work, USCIS will issue an Employment Authorization Document (EAD) in the student’s name. This card is sufficient documentation to complete the I-9 form establishing employment eligibility.
The F-1 OPT is a good alternative to the H-1B for positions lasting only one year. It is also BGSU’s policy to begin faculty/staff employment using the OPT option to allow for preparation of the H-1B petition after the first term of employment.
The TN visa category was established as part of the North American Free Trade Agreement (NAFTA) in 1994. The intent of this legislation was to make it easier for Canadians and Mexicans to engage in professional business activities working as a professional for a U.S. employer on a temporary basis.
The Trade NAFTA visa is available only to citizens of Canada and Mexico. Landed-immigrants of Canada are NOT eligible for TN visas.
The NAFTA visa is issued in three-year increments and can be renewed without limit as long as the individual has a bona fide letter from a U.S. employer establishing a contractual, but temporary, employment relationship. For Canadian citizens, because no visa is needed to cross the border, entry to the U.S. is made at any Port of Entry along the U.S.-Canadian border. The U.S. border control officer will issue an I-94 Arrival/Departure card to the new employee noting TN status. This documentation is acceptable to prove work authorization in order to complete the I-9 form.
Mexican citizens are required to visit a U.S. consulate prior to entry to obtain a TN visa. Again, this documentation is acceptable to prove work authorization in order to complete the I-9 form.
A final note: entry in TN status for both Canadians and Mexicans will only be allowed for a NAFTA-specified occupation. Sixty three (63) occupations are allowed including teacher, scientist, research assistant, scientific technician, and medical/allied professions, computer systems analysts, economists, engineers, and accountants. Please note that coaches are NOT eligible for TN status.
The O-1 status is for those academic practitioners who have in the eyes of USCIS achieved and sustained national and international acclaim for extraordinary ability in the sciences, arts, education, or business.
Much like the H-1B status, the O-1 allows for dual intent and is employer-sponsored based on an actual offer. Individuals may not self-petition. The filing fee for O-1 is $325 with no option for Premium Processing.
The O-1 petition requires substantial documentation of the beneficiary’s achievements, including letters from members of a recognized peer group that establishes the sustained and extraordinary accomplishments of the beneficiary (employee). Please note that the standard for approval for an O-1 is more difficult to meet than any other non-immigrant status.
Exchange visitors to BGSU enter the U.S. in J-1 status as either visiting professors, research scholars or short-term scholars. The intent of the Federal regulations allowing for such visits is international educational and cultural exchange. This means that a critical expectation underlies such approved exchange visitor visas: the person is in the U.S. temporarily with non-immigrant intent and will return home at the time the visa/status expires. Exchange visitors who enter the U.S. in one category (i.e., researcher) and who decide they would like to stay on in another category are generally not allowed to do so.
Special Restriction for J-1s
Most J-1 visa holders have a notation on their visa: Subject to 212(e). This is more commonly referred to as the Home Residency Requirement.
The Home Residency Requirement is part of the expectation when an international comes to the U.S. as an Exchange Visitor in J-1 status. Persons are subject if (1) they received any funding from the U.S. government (working on NSF, NIH, FIPSE grant funds, for example), or if (2) they received funds from their home government, or if (3) they possess a skill that is considered critical to their country.
In real terms, those subject to the 2-year Home Residency rule must leave the U. S. and reside in their home country for a total of two years (need not be in a single block of time) before they can apply for a new visa to re-enter the U.S. in another non-immigrant status or apply to adjust status to immigrant.
At this time, the maximum total length of stay in the U.S. in the J-1 Exchange Visitor category is five (5) years. Once J-1 scholars complete their programs, they must remain out of the U.S. for one year before they can apply to return in J-1 status. Any exchange visitor in the J-1 short-term scholar category who spends no more than six (6) months in the U.S. is exempt from the 12-month bar. Requests for an Exchange Visitor or to extend a visitor/scholar stay in the U.S. in J-1 status should be directed to Faculty & Staff Immigration Services.