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THE H-1B NON-IMMIGRANT VISA PROCESS

 

  

Enrique A. Maciel-Matos, Attorney


THE H-1B NON-IMMIGRANT VISA PROCESS AS A MEANS OF HIRING INTERNATIONAL TEACHERS


Overview of the H-1B Non-Immigrant Visa Process

Hiring an international teacher can be accomplished through the H-1B non-immigrant visa process. The H-1B non-immigrant visa process allows for the temporary employment of foreign workers in specialty occupations. United States Citizenship and Immigration Services (USCIS) oversees and adjudicates the H-1B non-immigrant visas process. Foreign workers applying for the first time for an H-1B non-immigrant visa are subject to the cap restrictions: 65,000 available visas for H-1B Regular Cap and 20,0000 available visas for the Master’s Cap (for those foreign workers who hold a Master’s Degree or higher).

In order for an international teacher to qualify for an H-1B non-immigrant visa, the international teacher must possess a bachelor’s degree or higher degree (or its foreign equivalent). The fees commonly associated with the H-1B non-immigrant visa process are the following: 1) Filing Fees; and 2) Legal Fees. It is important to point out that the related American Competitiveness and Workforce Improvement Act (ACWIA) fee does not need to be paid by primary and secondary institutions. Please note that before any payment is made by the international teacher for any of the associated fees, or a deduction is taken from his/her pay to reimburse the employer, it must be determined if such payment or deduction is permitted and if so, whether it is authorized or unauthorized. The international teacher will only be allowed to work for the sponsoring school district unless he/she transfers to a new school district. The new school district will be required to file a separate H-1B non-immigrant visa petition on behalf of the international teacher. The H-1B non-immigrant visa is given for a 6-year period and will initially be approved for a 3-year period. As will be explained below, the foreign worker has the option of extending/renewing the visa for the remaining 3 years.

Once the H-1B non-immigrant visa petition is approved, the international teacher will receive the original approval notice (Form I-797) which contains a tear-off I-94 card at the bottom of the notice. This I-94 card must be place in the international teacher’s passport. In the event that the international teacher is outside the United States when the approval is granted, he/she will have to make an appointment at a Consulate and go through the interview process in order to receive the H-1B non-immigrant visa stamp. Once the international teacher is approved and has obtained the visa stamp, he/she may enter the United States. Please note that the international teacher must present the I-94 card to the school district as evidence of the international teacher’s authorization to work. Additionally, please note that the H-1B non-immigrant visa will allow the international teacher to bring his spouses and children under age 21 with an H-4 visa.

Overview of the H-1B Non-Immigrant Visa Extension/Renewal


An H-1B non-immigrant visa extension may be filed 6 months prior to the requested start date. Because it is an extension of the original H-1B non-immigrant visa, the petition will not be subject to the cap. As was previously stated, the H-1B non-immigrant visa is granted for a 6-year period. Nevertheless, an individual can extend the H-1B non-immigrant visa past the 6 year limit if he/she has a Labor Certification (PERM) pending with the Department of Labor (which allows for extensions of 1 year increments) or an approved I-140 (which allows for extensions of 3 year increments).

A petition for extension must be filed prior to the date the foreign worker’s authorized stay expires. The foreign worker’s authorized stay is indicated in the I-94 card. It is important to point out that once a petition has been timely filed, the foreign worker is allowed to continue to work for 240 days while the petition is pending. In the case of international teachers, please note that in order to qualify for an extension/renewal, the international teacher must have a valid teaching certificate which covers the period of time requested in the extension petition.

If you have any questions, please contact Enrique A. Maciel-Matos and The Fowler Law Firm at 512-441-1411 or by email at emaciel@thefowlerlawfirm.com.


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