It is well known that constant advances in a field of research depends on an incessant flow of well-trained, capable, and motivated people into the field. The influx of foreign professors and researchers into the U.S. has always assisted in furthering the cause of science and technology, with an added premium of universal welfare.

Foreign professors and researchers coming into the U.S. have expanded the community of science and technology, bringing with them new and innovative ideas. They have assisted the organizations they have come to, to realize core objectives, and at the same time boosted their own careers. The challenge for professors and researchers, and the universities, research institutions, and companies that seek them out, lies in selecting the appropriate immigration option. We will discuss some of the nonimmigrant options below, and will address the immigrant options next month:

Nonimmigrant Visa Options to Work Temporarily in the US:

J-1 Visa:

The J-1 is a nonimmigrant visa program under which foreign professors and research scholars engage in research, teaching, and lecturing with their American colleagues. Alien physicians in graduate medical education or training and short-term scholars are not included in this category; they are covered by a different aspect of the J-1 program.

Purpose of the J-1 Visa Program:

The purpose of the J-1 Exchange Visitor Program, in part, is to foster the exchange of ideas between Americans and foreign nationals and to stimulate international collaborative teaching, lecturing and research efforts. The exchange of professors and research scholars promotes the exchange of ideas, research, mutual enrichment, and linkages between research and educational institutions in the United States and foreign countries. It does so by providing foreign professors and research scholars the opportunity to engage in research, teaching and lecturing with their American colleagues, to participate actively in cross-cultural activities with Americans, and ultimately to share with their countrymen their experiences and increased knowledge of the United States and their substantive fields.

Who are Eligible as Professors and Researchers under the J-1 Visa Program?

Professor: An individual engaged primarily in teaching, lecturing, observing, or consulting at post-secondary accredited educational institutions, museums, libraries, or similar types of institutions. A professor may also conduct research, unless specifically disallowed by the sponsor.

Research Scholar: An individual primarily conducting research, observing, or consulting in connection with a research project at research institutions, corporate research facilities, museums, libraries, post-secondary accredited educational institutions, or similar types of institutions. The research scholar may also teach or lecture, again unless specifically disallowed by the sponsor.

J-1 Eligibility Criteria:

An individual may be selected for participation in the J-1 Exchange Visitor program as a professor or research scholar subject to the following conditions:

• The participant must not be a candidate for a tenure track position;
  
  
• The participant has not been physically present in the United States as a nonimmigrant for all or part of the twelve-month period immediately preceding the date of program commencement set forth on his or her Form DS-2019, unless:
  
  
  • The participant is transferring to the sponsor's program
  • The participant's presence in the United States was of less than six months duration; or
  • The participant's presence in the United States was pursuant to a short-term scholar exchange activity and
    
    
• The participant is not subject to the prohibition against repeat participation

NOTE: The Form DS-2019, issued by the J-1 sponsor, must be issued only after the professor or research scholar has been accepted by the institution where he or she will participate in an exchange visitor program.

Occasional Lectures or Consultations:

Professors and research scholars may participate in occasional lectures and short-term consultations, but only if authorized to do so by his or her sponsor. Any such lectures and consultations must be incidental to the exchange visitor's primary program activities. If wages or other remuneration is received by the exchange visitor for such activities, the exchange visitor must act as an independent contractor, and the following criteria and procedures must be satisfied:

The occasional lectures or short-term consultations must:

1. Be directly related to the objectives of the exchange visitor's program;
2. Be incidental to the exchange visitor's primary program activities;
3. Not delay the completion date of the exchange visitor's program; and
4. Be documented in SEVIS.

Obtaining authorization to engage in occasional lectures or short-term consultations involving wages or other remuneration.

The J-1 exchange visitor must present to the responsible officer:

A. A letter from the sponsor setting forth the terms and conditions of the offer to lecture or consult, including the duration, number of hours, field or subject, amount of compensation, and description of such activity; and

B. A letter from the exchange visitor's department head or supervisor recommending such activity and explaining how the activity would enhance the exchange visitor's program.

NOTE: The responsible officer must review the letters required and make a written determination whether such activity is warranted, will not interrupt the exchange visitor's original objective, and satisfies the criteria.

Duration of the Program:

A professor or research scholar may be authorized to participate in the Exchange Visitor Program for the length of time necessary to complete his or her program, provided such time does not exceed five years. The five-year period of participation is continuous and begins with the initial program begin date documented in SEVIS or the date such status was acquired via a change of status approved by the Department of Homeland Security (DHS) as documented in SEVIS and ends five years from such date. A responsible officer may not extend the period of program duration beyond the five-year period of maximum program duration authorized for professor and research scholar participants. The State Department may, in its sole discretion, authorize an extension beyond the permitted five-year period.

J-1 visa Two-Year Home Country Residence Requirement and Waivers:

Professors and researchers who enter the U.S. in, or change their status to J-1 status may be subject to the two-year foreign residence requirement. If subject to the two-year home residence requirement they are ineligible to change their status to that of H, L, or legal permanent resident status until they have fulfilled the two-year foreign residence requirement. This can only be done by the professor or researcher going back to their home country or country of last residence. Professors and researchers on J-1 visa status may also apply for a waiver of the two-year foreign residence requirement if they wish to remain in the United States beyond the end date of their programs, or if they seek to submit an application to the U.S. Citizenship and Immigration Service for a change in visa status.

H-1B Visa:

The H-1B nonimmigrant visa category allows U.S. employers to augment the existing labor force with highly skilled temporary workers from outside the U.S. The H-1B visa program is utilized by U.S. employers (including many University and research institutions) to employ professionals, including professors and researchers, in specialty occupations that require theoretical or technical expertise in their specialized field. A specialty occupation requires the theoretical and practical application of a body of specialized knowledge and a bachelor's degree or the equivalent in the specific specialty (e.g., sciences, medicine and health care, education, biotechnology, and business specialties, etc…).

The H-1B visa is not the only visa available for foreign national professors and researchers, but for many it may be the only visa they qualify for. While H-1B visas are used primarily for positions in technology and the sciences, they are also available to university and college professors and researchers in various fields. Unfortunately, the current annual cap on the H-1B category is 65,000, a level that is reached all too early each year. Until the US Congress decides to increases that cap there will be a fight for the limited number of visas available.

NOTE: Professors and researchers who are employed by universities and certain research institutions generally qualify for H-1B visa status outside of the annual 65,000 cap.

Duration of the Program:

H-1B workers are admitted to the United States for an initial period of up to three years, which may be extended for an additional three years. A foreign worker can be in H-1B status for a maximum continuous period of six years.

Employer Responsibilities:

To hire a professor or a researcher on H-1B, the job must be a professional position that requires, at a minimum, a bachelor's degree in the field of specialization. Each employer seeking an H-1B has several responsibilities:

1. The employer shall submit a completed Labor Condition Application (LCA) on Form ETA 9035E in the manner prescribed by the regulations. By completing and signing the LCA, the employer agrees to several attestations regarding an employer's responsibilities, including the wages, working conditions, and benefits to be provided to the nonimmigrant.
   
   
2. The employer shall make the LCA and necessary supporting documentation available for public examination at the employer's principal place of business in the U.S. or the place of employment within one working day after the date on which the LCA is filed with ETA.
   
   
3. The employer may then submit a copy of the approved LCA to U.S. Citizenship and Immigration Services (USCIS) with a completed petition (USCIS Form I-129) requesting H-1B classification.
   
   
4. The employer shall not allow the professors or researchers to begin work until USCIS grants the worker authorization to work in the U.S. for that employer or, in the case of a nonimmigrant who is already in H-1B status and is changing employment, to another employer until the new employer files a petition supported by a certified LCA.
   
   
5. The employer shall maintain documentation to meet its burden of proof with respect to the validity of the statements made in its LCA and the accuracy of information provided, in the event that such statement or information is challenged. The employer shall also maintain such documentation at its principal place of business in the U.S. and shall make such documentation available to DOL for inspection and copying upon request.

While the H-1B visa is certainly a good visa for professors and researchers its six year time limit can be a problem for long term stability. With the shortage of Americans pursuing advanced degrees in many of the science and technical fields, the H-1B visa is tool needed by U.S. universities and research organizations to fill certain post-doctoral, tenure-track, and research positions, including programs funded by the U.S. government. This is particularly true for positions in the sciences and engineering. Unfortunately, professors and researchers in H-1B status must leave after they reach the six year limit unless the employer begins the permanent residence process for them.

O-1 Visa:

Under the O nonimmigrant visa classification, a U.S. employer, U.S. agent, or a foreign employer through a U.S. agent, may petition for professors or researchers who have shown extraordinary ability in the arts, sciences, education, business or athletics, demonstrated by sustained national or international acclaim, to come to the United States temporarily to continue work in the area of extraordinary ability. Extraordinary ability in the field of science means a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor.

The O-1 nonimmigrant visa is granted for a specific event, such as a tour, lecture series or project. An alien may be authorized to come to the United States to perform services relating to an event or events if petitioned for by a qualifying employer.

Evidentiary Criteria:

Professors and researchers of extraordinary ability in the fields of science or education must demonstrate sustained national or international acclaim and recognition for achievements in the field of expertise by providing evidence of:

Receipt of a major, internationally recognized award, such as the Nobel Prize; or

At least three of the following forms of documentation:

1. Documentation of the alien's receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
   
   
2. Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
   
   
3. Published material in professional or major trade publications or major media about the alien, relating to the alien's work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation;
   
   
4. Evidence of the alien's participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought;
   
   
5. Evidence of the alien's original scientific, scholarly, or business-related contributions of major significance in the field;
   
   
6. Evidence of the alien's authorship of scholarly articles in the field, in professional journals, or other major media;
   
   
7. Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;
   
   
8. Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.
   
   
9. If the criteria do not readily apply to the beneficiary's occupation, the petitioner may submit any comparable evidence in order to establish the beneficiary's eligibility.

Duration of the Program:

A petition for O-1 status can be approved for period of the event, but for no longer than three years. The status can be extended in one year increments if it is for the same event. If the petition is for a different position with the same employer or for a new employer it is considered a new “event” and the petition can be granted for up to three years. Unlike the H-1B there is no maximum time that a professor or researcher can be in the US in O-1 status. Professors and researchers may enter the United States up to ten days before the validity period of the petition begins, and have ten days after the validity of the petition ends to depart. They may only work during the validity period of the visa.

TN Visa:

The TN nonimmigrant visa is available to citizens of Canada or Mexico to be employed in professional positions in the U.S. as a result of North American Free Trade Agreement (NAFTA).TN visas are only issued in increments of one year but can be extended on an annual basis. The TN visa, like the other nonimmigrant visas discussed above, is given for a specific employer. Any change in employer requires a new petition which must be approved by USCIS before work can begin with the new employer.

How can Professors and Researchers from Mexico and Canada Work in the United States?

Professors and researchers from Canada or Mexico may work in the U.S. under the following conditions:

• Applicant is a citizen of Canada or Mexico;
• Profession is on the NAFTA list;
• Position in the U.S. requires a NAFTA professional;
• Mexican or Canadian applicant is to work in a prearranged full-time or part-time job, for a U.S. employer. Self employment is not permitted;
• Professional Canadian or Mexican citizen has the qualifications of the profession

With some exceptions, each profession requires a baccalaureate degree as an entry-level requirement. If a baccalaureate is required, experience cannot be substituted for that degree. Some professions have alternative criteria to a bachelor's degree whilst some professions require experience in addition to the degree.
TN status for Mexican or Canadian citizens can be obtained fairly quickly, but cannot be used for tenured or tenure-track professors or physicians that are engaged primarily in the direct treatment of patients. Canadian and Mexican faculty TN’s are solely for temporary assignments in one-year increments for professors/researchers who are working as teachers or researchers in nonpermanent positions.

Duration of the Program:

The maximum period of admission into the U.S is one year. The US Citizenship and Immigration Services grants extensions of stay for one year at a time. There is no limit on the number of years a TN visa holder can stay in the United States. However, the TN visa status is not for permanent residence, and TN holders must be able to show that they continue to have nonimmigrant intent.

Conclusion:

Professors and researchers have several options when comes to temporary entry into the U.S. to teach or conduct research. Each has its benefits and applications, and each have drawbacks. The H-1B allows a person to remain in the U.S. for up to six years, but are limited to 65,000 per year. The O-1 is available to only the top individuals in their field, but if a professor or researcher qualifies they can move to permanent residence fairly easily. The TN is not subject to any caps, but is only available to citizens of Canada and Mexico. The J-1 is a very flexible visa but often comes with the two year home residency requirement.

Professors and researchers, their employers and their legal advisors must carefully weigh all the options against the facts before deciding on which visa to pursue and developing a course of action.

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