Employment Visas and Permanent Residence for Academics

Introduction

  • This panel focuses on employment visas and permanent residents for academics, specifically teaching and non-teaching staff at colleges and universities.
  • The discussion excludes high school teachers and special handling cases.
  • Topics include temporary statuses (F, J, H, O), USCIS policy manual updates on achievement-based cases (NIW, EB-1, O-1), temporary intent considerations, Visa Bulletin updates, backlogs, delays, and J-1 waivers.

Temporary Status Updates

  • When contacted about employment authorization, consider these nonimmigrant options:
    • F-1 OPT or STEM OPT
    • J-1 Academic Training: researcher or professor
    • H-1B Specialty Occupation: Generally the default option.
    • O-1
    • TN (Canada or Mexico)
    • E-3 (Australia)
    • H-1B1 (Singapore or Chile)

H-1B Visas

  • H-1B visas are a traditional route for university employees.
  • Universities are cap-exempt.
  • Basic Requirements:
    • Foreign national must have completed a specific course of education at a college or university that culminates in a bachelor's degree.
    • The degree must be in a specialty area (computer science, engineering, business, architecture, medicine, education, hard sciences).
    • Years of experience may substitute for a degree (3 years of experience for 1 year of education, according to USCIS).
    • The job must require a specialty degree.
    • Example: Architecture degree required for an architecture position or Civil engineering degree required for a civil engineering position.
  • Challenges arise with generalist jobs (student recruiter, data entry, simple administrative jobs) or simple computer programming positions.
  • Nurses typically require an advanced nursing degree (nurse anesthesiologist, nurse practitioner) due to the two-year degree requirement for a nursing license.

H-1B Challenges and RFE Trends

  • Program Manager:

    • When a position doesn't have a traditional degree associated with it.
    • High-level research position with the person having a degree in industrial engineering working for an environmental institute on how industrial pollution was affecting the rivers.

  • Project Coordinator:

    • Person finished PhD in higher education and ran programs for dining hall workers at a major public university.
    • Needed to show that the degree in higher education was related to creating innovative curricula.

  • Research Engineers:

    • Broad category, multiple types of engineers listed in O*NET.
    • For research departments doing aviation research, they would want to look at aerospace engineering or mechanical engineering or materials engineering.
    • Work with hiring managers to expand job descriptions to incorporate additional duties.
    • If the case is filed with something very broad like, conduct research in a laboratory, the details for matching LCA and the job description should be matching the individual's background.

  • Nurses:

    • O*Net now says bachelor's for nurses.
    • Arguing that a teaching hospital requires bachelor's degrees for nurses.

  • Residence Hall Manager:

    • Usually a master's in higher education is needed but a person had an MBA.
    • By looking at the degree, the degree had coursework in community engagement, student and volunteer management, finance.

  • Coach Positions:

    • Successful if the individual has a matching degree (sports management, kinesiology).
    • Classify as an athletic trainer or recreation and fitness studies professor.
    • Can be classified in the faculty area if they teach a fitness course for credit.
    • Educational guidance and career counselor and advisor also works because advising and counseling is integral to the coaching job.

Practice pointer:

  • Communicate with the supervisor and try to figure things out.

O-1 Visas: Intricacies and Dual Intent

  • Dual intent is now recognized.
  • 9 FAM 402.13-10 clearly states that dual intent is permissible.
  • 9 FAM 402.13-5 addresses the effect of filing an immigrant visa petition.
  • Approval of a permanent labor certification or filing a preference petition is not a basis for denying O-1 or O-3 classification.
  • O-1 applicants may come to the U.S. temporarily and seek to become Lawful permanent resident of the United States.
  • Advanced parole is still needed for O-1 travelers when an I-485 is filed.
  • Consider waiting 60-90 days after entry before filing an adjustment of status, but this might be a judgment call.

Temporary Intent Developments

  • Guidance is now more reasonable about temporary intent, especially for F-1 students pursuing long-term programs (e.g., five-year Ph.D.).
  • It's less strict than during the Trump administration, reverting to the Condoleezza Rice memo approach.
  • Previously, Condoleezza Rice's memo generally meant unless it looks like they want to stay permanently or say they want to spend the rest of their life in the US then they can avoid it.
  • Consular officers were being very strict by refusing f one and j one visas if there's a temporary intent to stay longer term.

Implications for International Students

  • Changes how international offices advise students and employees in F-1 OPT status.
  • May not need to transition to H-1B before starting a permanent residence path.
  • Green card process can be started for someone on OPT without immediate immigrant intent problems.
  • Temporary intent denials are less common now, with more focus on home country ties.

USCIS Policy Manual Updates: STEM Initiatives

  • Positive statements and policies from the Biden administration for individuals with STEM degrees in STEM fields.
  • J-1 STEM initiatives allow industry to attract researchers and specialists.
    • American Immigration Council (AIC) is approved to sponsor researchers.
    • Specialist category available for industry sponsorship.
    • Cultural Vistas is a J-1 program approved for this category.
      ***These STEM initiatives are for individuals leaving the university to avoid the H1B cap.

O-1 Visas and STEM

  • More guidance available in the USCIS policy manual.
  • You can cite their own guidance in the USCIS policy manual.
  • If you're doing an o one, if you say my client spoke at a conference or my client was named on a grant, sometimes these things get rejected.
  • Being a named investigator on a grant on a federal grant is an indication of extraordinary ability.
  • Look for the Carnegie Classification of Higher Education to see is your university classified as R1 very high research activity.

EB-2 National Interest Waivers (NIW)

  • Labor certification is lengthy, and EB-2 has visa retrogression.
  • NIWs are pursued to get the fastest priority date.
  • Favorable considerations for those with advanced STEM degrees improving U.S. technology and infrastructure.

NIW Tool

  • Benefiting the US and something from a US government website saying that study helps US.
  • That there's a strong presumption that they should be approved if they have an advanced degree in STEM Field.
  • The degree must be on the critical and emerging technologies list that was put out by the white house.

NIW Tool: Skeletal Filing and Considerations

  • Jonathan Grode in Philadelphia and Amy Nice did a small pilot test trying to figure out how low you can go with these skeletal NIW with 15-20 cases.
  • Given perm is taking so long and prevailing wages for union positions takes longer, the lawyer needs to consider filing the Skeletal NIW when filing the prevailing wage.
  • This needs to be set up very carefully with the universities.
  • Bottom line NIWs are subjective.
  • With special handling its certain it will happen.
  • Filed a skeletal NIW for a doctor so they can extend their H1B beyond 6 years.
  • The skeletal NIW had very few publications, and they all got approved with no RFE.
  • Tulane rarely uses NIWs and almost always ops out for EB1.

Questions

  • If a student gets an NIW approval while on OPT but is retrogressed by a year or more:
    • Stem extension is ok.
    • Under the new guidance, travels and ok as long as they ultimately consular process the NIW.
    • They shouldn't apply for a new student visa abroad.
  • The doctor will consular process in the future on the 1-140, instead of adjusting status in the US.
  • Final merit analysis of O1 is fine because applications are getting approved with limited documentation.

Unlawful Presence and Duration of Status

  • In 2018, there was a policy memo changing roles about unlawful status for f-1 status.
  • If students drop a course or they don't pay their bill or on time and don't find out for a longer period of time; This could have extreme consequences.
  • The court put it back to the previous status quo.
  • Once USCIS determines status is out of status; That is when the unlawful presence starts to accrue.

J-1 Waivers

  • It is important to understand what two twelve means.
  • The J12 year home residence requirement means that an individual cannot change status from j2h in U.S., the individual cannot get H1B visa stamp abroad, and in most cases cannot file I-485.

Categories for reasons to apply for J-1 waiver

  • Interested government agency.
  • Exceptional hardship.
  • Fear of persecution.
  • No objection statement.
  • USCIS now has an option; impossibility of performance, if serious instability, war, or something very bad happening to, home country. Then applicant can make their argument Directly to USCIS

Questions about J-1

  • After the two year waiver is applied and gets approved that stops all benefits of j-1.
  • A client in tenure track and need a two year waiver; that's something to be cautious about due to time inconsistency. So inform the client because solution could be created at that moment instead of August.
  • No objection waivers usually work. It usually involves dealing with the consultation, in a wide variety of how long it takes, some of them go to in 2 to 3 months and sometimes 6 to 8 months.
  • Exceptional Hardship waiver this case will be referred to an outside council.
  • The approval rate on these is also high, but is a major filing.
  • Persecution is also an option, which looks just like an asylum, but the standards are lower.
  • Asylum is not affected by the two year home residence requirement.

Counsel on J-1

  • There is now better guidance on Temporary intent.
  • The J-1 early career stem initiative is being offered with universities for up to five years.
  • State Department is now offering positions at host companies that are in the ecosystem of the universities.

Additional questions

  • Or consular posts usually issuing f-1 visas after status violation or do you more often recommend f-1 reinstatement?
    • Its better recommendation to ask for new f-1 as they are quicker that reinstatement.