Non-immigrant and immigrant visa categories for higher education

Non-immigrant visa options

B-1 Visas [Visa Waiver]

Key Points
  • Best use: Guest Lecturers
  • Can receive honorarium for visits of less than 9 days.
  • Universities can cover the costs for general business expenses.
  • Many foreign nationals do not need to apply for a visa, if they qualify through the Visa Waiver Program.
  • Quick turnaround – foreign nationals can apply directly at their Embassy/Consulate.

F-1 Students and Employment

Key Points On-Campus Employment:

  • F-1 students are allowed to work up to 20 hrs per week for on-campus employment during the semester and 40 hrs per week for on-campus employment during vacations.

Optional Practical Training (OPT):

  • Most F-1 Students are eligible for 1 year of employment after completion of a degree program.
  • Employment must be related to their major.
  • This can be extended for an extra 17 months if employment is in a STEM area and the employer is enrolled in E-Verify.

J-1 Visiting Scholars and Researchers

Key Points
  • The College/University must have Department of State authorization.
  • J-1 visas can be granted for up to 5 years.
  • Spouses are permitted to work.
  • Depending on the field of endeavor, scholars can be required to return to their home country for 2 years.
  • If the foreign national is subject to the 2-year home residency requirement, in order to continue employment, the foreign national needs either a waiver or O-1 visa classification (in most instances).

H-1B Visa

Key Points
  • There is a 6-year maximum period of stay unless the green card process is started.
  • H-1B workers can “port” between employers.
  • Spouses are not permitted to work.
  • Employers must be careful of export control licensure issues.
Requirements A 3 Part Test:

  1. The position offered to the foreign national requires at least a BA/BS in a specific field of endeavor.
  2. The foreign national possesses a BA/BS in a field related to the position offered; and
  3. If the position is unionized, the foreign national is paid pursuant to the CBA and if the position is not unionized, the foreign national is paid the “prevailing wage” or the “actual wage,” whichever is higher.

Free Trade Visas

Key Points H-1B1 – For nationals of Singapore and Chile.

  • This visa carries a similar test to the H-1B visa.
  • Available in 18-month increments and theoretically renewable indefinitely.
  • Spouses are not permitted to work.

TN – For nationals of Canada and Mexico.

  • The occupation must be on the specified list
  • Available in 3-year increments and theoretically renewable indefinitely.
  • Spouses are not permitted to work.

E-3 – For nationals of Australia.

  • This visa carries a similar test to the H-1B visa.
  • Available in 2-year increments and theoretically renewable indefinitely.
  • Spouses are permitted to work.

O-1 Visas for Foreign Nationals of Extraordinary Ability

Key Points
  • Great for foreign nationals who hold or have held J-1 status with a 2-year return residency requirement and are of renown in the field of endeavor.
  • Must have extraordinary credentials that evidence sustained national or international acclaim (unless the position is in the arts, which carries a lower threshold requirement).
  • Usually evidenced by publications; proof of reviewing others’ work (peer review journal editing); receipt of awards; working for distinguished organizations; and original contributions.
  • Duration: 3 years initially and renewable in 1-year increments.

Immigrant visa options

EB-2 Special Recruitment

Key Points
  • Specifically tailored to the needs of colleges and universities. This immigrant visa is the perfect process when formal recruitment was conducted.
  • Very cost effective.
Requirements
  • Application memorializes recruitment already conducted and can be filed as long as recruitment was conducted within 18 months of the foreign national’s selection for the position.
  • The position need only include some classroom teaching.
  • Need to prove that the university/college followed its normal selection protocol.

EB2/EB3 Regular PERM

Key Points
  • The most widely used means of obtaining permanent residency.
  • EB-2 visa is for positions that require advanced degrees (researchers).
  • EB-3 visa is for positions that require at least two years of experiences or a BA/BS (support / technical staff).
  • Hard to use existing recruitment and usually requires a new test of the labor market.
Requirements
  • This requires an affirmative test of the labor market in prescribed locations.
  • Must determine that there are no minimally qualified and available U.S. workers.

EB-1 Foreign National of Extraordinary Ability

Key Points
  • This immigrant visa does not require PERM.
  • Foreign nationals can self-sponsor.
  • This category is rarely subject to backlogs, offering a faster path to permanent residency.
  • Similar standard to O-1 classification – but stricter.
Requirements The petition must demonstrate:

  • sustained national or international acclaim through extensive documentation;
  • proof that foreign national will continue to work in the field of endeavor; and
  • that the foreign national will bring substantial benefit to the United States.

EB-1 Outstanding Researcher / Professor

Key Points
  • Does not require PERM.
  • Foreign National cannot self-sponsor.
  • This category is rarely subject to backlogs, offering a faster path to permanent residency.
  • Lower standard than EB-1 Extraordinary Ability.
  • Rarely used by Post-Doctoral students.
Requirements
  • Must show sustained national or international acclaim through extensive documentation.
  • Must prove that foreign national has 3 years of professional experience prior to filing.

EB-2 National Interest Waiver

Key Points
  • This category does not require PERM.
  • Foreign nationals can self-sponsor.
  • Lower standard than EB-1 Extraordinary Ability / EB-1 Outstanding Researcher.
  • Can be used for Post-Doctoral applications, so the NIW is ideal for researchers.
Requirements
  • Work is in an area considered to be of intrinsic merit.
  • The work must be deemed to be national in scope.
  • The foreign national’s employment serves the national interest substantially more than would a similarly skilled U.S. worker (demonstrated through publications and record of contributions to field).