As school districts across the country face growing teacher shortages, international talent has become a vital part of staffing strategies.
Recently, J-1 visa — a commonly used category for educators — applicants have struggled to schedule interview appointments at embassies and consulates because of the temporary pause implemented by the Trump administration in late May, and the subsequent reported backlog after it was lifted about three weeks later.
However, alternatives to the J-1 visa exist for many school systems and their employees. For example, Garfinkel Immigration Law Firm has had success assisting many educators applying for H-1B cap-exempt visas.
Below, we'll explore how school systems can become eligible to file H-1B cap-exempt visas for their teachers, the benefits of doing so, eligibility criteria, and more.
More about the J-1 visa and recent delays
A J-1 visa permits foreign nationals from any country to come to the United States in an exchange program designated by the U.S. Department of State.
The foreign national must enter the United States for the purpose of teaching, instructing, lecturing, studying, observing, conducting research, consulting, demonstrating special skills or receiving training.
Many J-1 visa holders are required by law to return to their home country for two years before they can apply for another U.S. visa or green card. For schools specifically, this rule can block them from directly transitioning a strong teacher into a more permanent role, even when both sides want to continue the relationship.
Further, the Trump administration paused the scheduling of all interview appointments for student and exchange visitors applying for F, M, and J visas in late May. The pause lasted for three weeks, with appointments resuming in mid-June. However, waiting times for appointments have anecdotally increased after the pause's conclusion.
Moreover, the DOS implemented new social media "screening and vetting" procedures for student and exchange visitors, which could mean longer processing and wait times, as well.
These increased processing and wait times could lead schools to pursue alternative visa options for their foreign national educators as they seek to fill open positions heading into the new school year.
The H-1B cap-exempt visa category
As mentioned above, Garfinkel Immigration Law Firm has had success with educators applying for an H-1B cap-exempt visa.
The H-1B visa is generally available for U.S. employers to fill a "specialty occupation" with a qualified foreign national. A specialty occupation is one that generally requires a bachelor's degree or higher, or its equivalent, as a minimum, entry-level credential.
A legislatively established statutory cap limits approvals of new H-1B petitions in a fiscal year to 85,000, however, certain institutions and foreign nationals are "cap-exempt" and may be eligible to file an H-1B petition not subject to the numerical limits. This could include religious institutions, as well as certain non-profit employers.
In order to qualify for cap-exemption, the organization must first show it is considered a not-for-profit under IRS regulations, a category which most K-12 public, private and charter schools fit into. The organization then must prove it has a written affiliation with an accredited college or university.
Two examples of ways school systems can demonstrate this written affiliation is by:
- The primary or secondary school having a written MOU or agreement to host student teachers from one or more college or university.
- The secondary school offering dual enrollment classes which allow students to receive credits from a specific college or university.
Showing such affiliation allows the school system to employ the educator on a cap-exempt H-1B visa without concern about the cap for the applicable fiscal year.
In most situations, an H-1B petition can be approved for a maximum initial period of three years and may be extended for an additional three years longer under certain circumstances.
Conclusion
Many schools relying on the J-1 visa for teaching positions may now find themselves struggling with long processing times and delays, which could be especially challenging given the current workforce shortage.
The H-1B visa, especially for cap-exempt school systems, is a strong alternative. Being deemed a cap-exempt sponsor allows schools to file H-1B petitions at any time of year without needing to win a spot in the annual lottery. The H-1B visa could also, in most circumstances, provide six years of valid status, which lays the foundation for long-term retention.
School districts should consult with experienced counsel to learn more about the specific immigration options that may be available for their educators and employees.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
