Visa Categories
Faculty & Staff
Immigration Topics
There are many different visa types that allow for work. Staff in CIP are
available to provide further information on regulations, types of status, procedures
for application, and the advantages and limitations of each.
Visa categories
most appropriate for an employee in a university:
H-1B Status (Non-Immigrant/Immigrant Worker)
H-1B status is the appropriate status for any foreign national who is coming
to the U.S. or is already in the country and who has been hired to perform
services in a specialty occupation. A specialty occupation is defined as one
that requires an employee to “possess high education usually reflected
in at least a 4-year degree, technical training, specialized experience or
exceptional ability” needed to meet the standard requirements of the
position.
It is typical for an international employee to begin work at BGSU in the
H-1b non-immigrant status even though the university may have the intention
to retain
the individual if approved for tenure. The H-1b status does allow for “dual
intent” meaning that the employee doesn't have to prove intention
to return “home” and has education and skills to be sponsored
for legal permanent residency.
The maximum period of time an individual may remain in the U. S. in H-1B
status is six (6) years, typically in 3-year increments. H-1b status is
employer-specific, however, so individuals can’t automatically transfer an approved H-1B
petition to another employer. It is true that once a person has been approved
to work in H-1b status for a particular “specialty occupation,” e.g.,
faculty, they are eligible to “port” (transport) the status
to a new employer as long as the new position is similar to the one previously
held. While waiting for the new H-1b petition be approved for the new employer,
the international is allowed to work; if the new employer petition is denied,
the international must stop working immediately, and the employer must
take
the individual off payroll.
What does this mean to BGSU? If an international is hired who already is
in H-1b status for a similar position, the person may begin work here
immediately and continue working pending the filing and approval of an H-1b
specific
to
BGSU.
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Optional Practical Training Status (F-1 OPT)
New faculty or staff hires who
have just completed or are in the process of completing their degree programs
should be eligible for a one-year
extension on their F-1 student status, known as Optional Practical
Training. This
status is good for one-year maximum (no renewal or extension possible)
and allows
students to work in a position directly related to their field
of study.
Internationals appointed during the final year of their degree program
should be directed to the office on their campus that handles immigration
for international
students. There they will be given instructions on how to apply
for OPT. It is the students’ responsibility to submit the application and pay the
required fee. It is their university, not BGSU, that “sponsors” the
year of OPT. When the student has been authorized to work, USCIS will issue
an Employment Authorization Document (EAD) in the student’s
name. This card is sufficient documentation to complete the I-9
form establishing employment
eligibility.
The F-1 OPT is a good alternative to the H-1b for positions lasting
only one year. It is also BGSU’s policy to begin faculty/staff
employment using the OPT option to allow for preparation of the
H-1b petition after the first
term of employment.
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TN Status (Trade NAFTA Approved Occupation)
The TN visa category
was established as part of the North American Free Trade Agreement
(NAFTA) in 1994. The intent of this legislation
was to
make it
easier for Canadians and Mexicans to engage in professional
business activities –working
as a professional for a U.S. employer--on a temporary basis.
The Trade NAFTA visa is available only to citizens of Canada
and Mexico. Landed-immigrants of Canada are NOT eligible for
TN visas.
The NAFTA visa is issued in one-year increments and can be
renewed without limit as long as the individual has a bona
fide letter
from a U.S. employer
establishing a contractual, but temporary, employment relationship.
For Canadian citizens, because no visa is needed to cross the
border, entry
to the U.S.
is made at any Port of Entry along the U.S.-Canadian border.
There a U.S. border control officer will issue an I-94 Arrival/Departure
card
to the
new employee
noting TN status. This documentation is acceptable to prove
work authorization in order to complete the I-9 form. The cost
of
the
visa is currently
$50 and is a cost that should be reimbursed given the nature
of the visa as
necessary to “do business.”
Mexican citizens are required to visit a U.S. consulate prior
to entry to obtain a TN visa. Again, this documentation is
acceptable to prove
work authorization
in order to complete the I-9 form.
A final note: entry in TN status for both Canadians and Mexicans
will only be allowed for a NAFTA-specified occupation. Sixty
three (63)
occupations are allowed including teacher, scientist, research
assistant, scientific
technician,
and medical/allied professions, computer systems analysts,
economists, engineers, and accountants. Please note that coaches
are NOT
eligible for
TN status.
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O-1 Status (Persons of ExtraOrdinary Merit)
The O-1 status is for those academic practitioners who have
in the eyes of USCIS achieved and sustained national and
international acclaim
for
extraordinary
ability in the sciences, arts, education, or business.
Much like the H-1b status, the O-1 allows for dual intent
and is employer sponsored based on an actual offer. Individuals
may not
self-petition.
The cost of the
O-1 is $190 with no option for Premium Processing.
The O-1 petition requires substantial documentation of the
beneficiary’s
achievements, including letters from members of a recognized
peer group that establishes the sustained and extraordinary
accomplishments of the beneficiary
(employee). Because the standard for approval for an O-1
is more difficult to meet than any other non-immigrant status,
interested parties should discuss
this option with Diane Regan, Center for International Programs.
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J-1 Status (Exchange Vistor/Visiting Scholar)
Exchange visitors to BGSU enter the U.S. in J-1 status as
either visiting professors, short-term researchers or short-term
scholars.
The intent
of the Federal regulations
allowing for such visits is international educational
and cultural exchange. This means that a critical expectation
underlies
such approved exchange
visitor visas: the person is in the U.S. temporarily with
non-immigrant intent and
will return home at the time the visa/status expires. Exchange
visitors who enter the U.S. in one category (i.e., researcher)
and who decide
they would
like to stay on in another category are generally not allowed
to do so.
Special Restriction for J-1s
Most J-1 visa holders have a notation on their
visa: Subject to 212(e). This is more commonly referred to as the Home
Residency Requirement.
The Home Residency Requirement is part of the expectation
when an international comes to the U.S. as an Exchange
Visitor in
J-1 status.
Persons are
subject if (1) they received any funding from the
U. S. government (working on
NSF, NIH, FIPSE grant funds, for example), or if(2)
they received funds from their
home government, or if (3) they possess a skill that
is considered critical to their country (see country
skills
list at the U.S.
Bureau of Educational and Cultural Affairs (PDF) )
In real terms, those subject to the 2-year Home Residency rule must leave
the U. S. and reside in their home
country for a
total of two
years (need
not be
in a single block of time) before they can apply
for a new visa to re-enter the U.S. in another
non-immigrant status
or apply
to adjust
status to
immigrant.
At this time, the maximum total length of stay in
the U. S. in the J-1 Exchange Visitor category is
three
(3) years
and
can
now be extended
up to five (5)
years. In June 1996, a 12-month out-of-the-country
(U.S.) requirement was placed on professor and researcher
categories.
Once J-1
scholars complete
their programs,
they must remain out of the U.S. for one year before
they can apply to
return in J-1 status. Any exchange visitor in the
J-1 short-term scholar category
who spends no more than six (6) months in the U.S.
is exempt from the 12-month bar. Requests for an Exchange
Visitor
or to extend
a visitor/scholar
stay
in the U. S. in J-1 status should be directed to
the SEVIS manager in the Center
for International Programs.
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