The H-1B nonimmigrant category allows a business to hire qualified foreign workers on a temporary basis. In order to qualify for an H-1B visa: (1) the job must require a minimum of a bachelor's degree (or its equivalent) in a specialized field; and (2) the candidate must possess this degree or the equivalent in training and experience. For school districts, the job must also require the individual possess a teaching certificate.
If the foreign worker’s degree was obtained outside the United States, it must typically be translated and evaluated by a third-party educational evaluation service to ensure that it is the equivalent to a U.S. bachelor’s degree.
The H-1B petitioning process is comprised of two steps:
1. A Labor Condition Application (not to be confused with a Labor Certification Application) is prepared and filed with the Department of Labor, in which the employer attests, among other things, that the H-1B employee will be paid the higher of the prevailing wage or the “actual wage” paid to similar workers at the place of employment.
2. Once the Labor Condition Application is certified by the Department of Labor, the employer may then file the I-129 (H-1B petition) with the U.S. Citizenship and Immigration Services.
H-1B status is initially granted for three years and may be extended for an additional three years. With some exceptions, the maximum amount of time an employee can spend in H-1B status is six years (includes all time spent in either H or L status for any employer in the U.S.) Extensions beyond six years may be available depending upon the facts of a specific case.
It should be noted that the H-1B visa is a highly sought-after visa. Under current U.S. law, H-1B visa issuance is capped at 65,000 visas (plus an additional 20,000 for master’s degree holders) each fiscal year. U.S. Citizenship and Immigration Services typically receives more H-1B visa applications than actual visas available and thus they have created a lottery for selecting what petitioners may obtain one of the available visas. However, some companies are able to apply for an unlimited number of H-1B visas and therefore do not have to seek one of the 65,000 H-1B visas. These companies are called Cap Exempt.
Most school districts are eligible for Cap Exempt status. To qualify as Cap Exempt, the district must have an affiliation agreement (called an “intergovernmental agreement” in school law terms) with an institute of higher education (community college/university). The agreement must be active. For example, an active agreement is when the district has a dual enrollment agreement with a college and there are classes being offered to students pursuant to the agreement and students are taking those classes for college credit. Cap Exempt companies have the benefit of applying for an H-1B on any date and have unlimited visas available.
After filing the petition, USCIS will take 6-8 months to approve or deny the H-1B. The process can be expedited by filing for premium processing. Premium processing typically takes 15-45 days for USCIS to adjudicate the petition.
USCIS may issue a Request for Evidence (“RFE”). The requests vary, but often ask clarifying questions and for more evidence related to the company or individual. Getting an RFE will change the process’s timeline and must be answered by the date given by USCIS. RFEs are typically received when premium processing is applied.
Finally, it is important to note that the company is the H-1B sponsor and therefore is responsible for nearly all the fees and costs associated with the H-1B. The employee also bears the burden of compliance. The cost to file this petition would be:
Filing Fees
o $460 – USCIS Filing Fee (must be paid by employer)
o $500 – USCIS Fraud Prevention and Detection Fee (must be paid by employer)
o $2,805 – USCIS Premium Processing fee (not required and can be paid by either the employer or employee)
*Attorney Fees for H-1Bs (must be paid by employer)
My office regularly assists and advises when school districts sponsor teachers' H-1Bs. We evaluate the employee’s eligibility to be sponsored, gather all the documentation needed, and prepare the petition for submission to USCIS. After approval, we can track the employee’s status and advise you and the employee to ensure compliance with the H-1B rules. We try to make sponsorship as simple as possible for your staff so that you don’t have to become experts in immigration law.
Use the Book Consult or Contact Us form to reach out and find out how we can assist your school district.
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