The teacher shortage in the U.S. continues to this day and to alleviate this problem schools have been recruiting English-speaking teachers abroad to fill the need especially in such areas as math, science and special education.
Temporary Work Visas
According to the National Education Association, individual schools, districts and state education agencies comprise the largest single type of “importer” of foreign educators. Vocational schools, day care centers and Catholic schools also hire a large number of foreign teachers.
Generally, there are two types of temporary work visas open to foreign teachers, namely, the J-1 exchange visitor visa and the H-1B specialty occupation visa. The most common type of temporary work visa is the H-1B specialty visa.
There are no H-1B visas available at present because they have been exhausted. But employers who wish to sponsor H-1B workers may begin filing their I-129 petitions as early as April 1. If the petition is approved, the H-1B worker can begin working as early as October 1, the start date of the Immigration Service fiscal year, on which date the H-1B visas become also available.
H-1B Specialty Visa
The H-1B is a temporary visa classification for professional workers in a specialty occupation. “Specialty occupation” means an occupation which requires the theoretical and practical application of a body of highly specialized knowledge to perform fully the occupation, and which requires the attainment of a bachelor’s or higher degree as a minimum requirement to perform the job duties.
The H-1B is used by foreigners under other specialty occupations such as accountants, architects, engineers, doctors, occupational therapists, computer professionals, and more importantly, teachers.
The maximum authorized stay for an H-1B worker is a continuous period of six (6) years.
After the H-1B expires, the foreign worker must remain outside the US for one year before another H-1B petition can be approved. Certain H-1B workers with labor certification applications or immigrant visa petitions in process for extended periods may stay in H-1B status beyond the 6-year maximum, such as those whose labor certification application or employment-based immigrant visa petition had been filed and has been pending for at least 365 days
The H-1B worker is allowed to bring dependents with him/ her to the US under the H-4 visa.
H-1B Cap Issues
There were never enough H-1B visas in recent years to meet the demands of the US economy.
The annual cap for H-1B visas was initially set at 65,000 under the Immigration and Nationality Act of 1990. The economic boom, however, left a job market void for more foreign professionals that US employers could not fill because of the numerical limit. Congress responded by increasing the cap to 195,000 over a three-year period. But this cap increase was not extended and as a result, the annual cap dipped back to 65,000 by Fiscal Year 2004 making the demand for H-1Bs progressively worse over the past three years.
Considering the rush to get H-1B visas, most employers begin preparing the petition as early as possible. H-1B visas often run out even before the fiscal year begins.
There are, however, exceptions to the H-1B cap that some employers can take advantage of. Examples of such employers are non-profit and government-research organizations, colleges, universities and their affiliates (teaching hospitals). Not all non-profit organizations qualify for cap-exemption. They must be affiliated with institutions of higher education as defined by law to be able to qualify.
Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at 212 695 5281 or log on to his website at http://www.seguritan.com/