Virtually every sector of the U.S. economy is currently struggling with a lack of qualified and willing individuals to fill vacant employment positions. Education is no exception to this reality. Wisconsin school districts report high levels of available positions in teaching and administration, while college and university education programs report low enrollment. As a result, school districts are increasingly looking to foreign nationals as a source for educational professionals, particularly teachers. Historically, this has been primarily focused on bilingual educators due to the longstanding shortage of such professionals; however, options are available for other certified professionals as well.
There are two primary avenues for school districts to employ foreign nationals (i.e., those who are not U.S. Citizens or Lawful Permanent Residents, or those who have been granted permanent asylee or refugee status in the U.S.): 1) serving as a sponsoring organization or as a placement for Exchange Visitors (J-1 Nonimmigrant Category) or 2) sponsoring individuals for employment in a Specialty Occupation (H-1B Nonimmigrant Category). These options are discussed below.
Exchange Visitor Program – J-1 Nonimmigrant Category
The Exchange Visitor Program provides U.S. employers with options for temporarily employing foreign nationals in a wide range of disciplines. J-1 programs exist for employment as an au pair, summer employment at a seasonal resort, postdoctoral fellowship positions, medical residents and fellows, and teachers – as well as numerous other categories. The J-1 program is valuable because it is relatively easy to access and relatively inexpensive. However, the program also has significant drawbacks, which are discussed below.
Options for Employing J-1 Teachers
School districts interested in employing teachers as exchange visitors have two options: (1) contract with a third-party organization that is certified by the U.S. Department of Homeland Security (DHS) to generate the paperwork necessary for an individual to obtain a J-1 visa for transit to the U.S.; or (2) become a sponsoring organization directly through application with DHS by registering in the Student and Exchange Visitor Information System (SEVIS).
Initially, working with an existing sponsoring organization is likely the most effective method for employing teachers as exchange visitors. Some organizations provide visa processing services only, while others provide those services, as well as recruitment in the country of origin. The latter resource affords the opportunity to subcontract the recruitment, credential verification and skills assessment process, as well as the immigration process to the independent organization. In either case, the organizations frequently require a contractual arrangement. Careful review of these contracts is important. School district officials need to be aware of contract terms that obligate the school or district to a minimum number of participating teachers each year, prohibit the use of other exchange visitor programs, and/or prohibit the participating school district from taking steps to directly employ a participating teacher in a different nonimmigrant category.
For school districts with a consistent volume of need and experience with J-1 teachers, the school district may determine it is valuable to become a sponsoring organization directly. This allows the school district to generate the necessary support paperwork for visa issuance themselves, rather than through the independent organization. Becoming an authorized J-1 organization through SEVIS is a lengthy process, and obligates the organization to ongoing usage and administrative responsibilities. This option typically only makes sense with higher volume usage school districts.
Pros and Cons of J-1 Programs
Exchange visitor teachers are generally eligible for a maximum of five years of participation as a teacher. Initial sponsorship is handled by the sponsoring organization, as are visa issuance details and documentation. The process for the school district is relatively easy and also relatively low cost (perhaps $2,000 – $3,000 per teacher).
Once the five-year eligibility period concludes, the teacher must either obtain a different immigration status in the United States, or depart. Also, as noted above, many exchange program sponsoring organizations require participating schools to contractually agree not to sponsor J-1 teachers for direct employment once they complete the program. The purpose of this restriction is to protect the program integrity through DHS’ rules. Specifically, the program must be able to establish that it is not being used as a conduit for permanent relocation into the U.S., but rather that participants complete the five-year program and then return home.
Returning home following temporary periods of time in the U.S. must be the intent of any person in any nonimmigrant visa category (whether for tourism, as a student, or as an employee). For some J-1 exchange visitors, the return home requirement is enforced through a mandatory two-year home residence requirement. Those subject to this requirement, are prohibited from acquiring other employment categories (specifically H-1B) or permanent residence in the U.S. until they have returned to and been present in their home country for an aggregate period of two years. It is beneficial for participating schools to determine whether the teacher(s), who will be coming through the program, are subject to this two-year home residence requirement. In the case of teachers, it usually depends on whether the U.S. government has determined that the teacher’s country of origin is in need of the skills that the teacher possesses. The U.S. Department of State maintains a “skills list” by country and by J-1 program code. If the teacher’s country of origin and program code are listed, then that teacher is subject to the return requirement. In the case of bilingual teachers, this means that teachers from Spain are not subject to this requirement, but teachers from Guatemala, Honduras, El Salvador, etc., are subject to the requirement.
Home country residence requirements can be waived, but doing so requires approval of the U.S. State Department and the U.S. Citizenship and Immigration Services. It also typically requires an affirmative statement of no objection to the waiver from the teacher’s home country Embassy located in the U.S. Waivers can be and are frequently obtained, but it can be a lengthy process; therefore, advance planning is critical.
Specialty Occupation – H-1B Nonimmigrant Category
The H-1B classification is the other temporary category available for teachers, and other professional employees (generally defined as those positions for which a bachelor’s degree or higher is normally required). School districts are able to serve as petitioners to support foreign national employees for employment in the H-1B category without the need for either a sponsoring organization or registration through SEVIS. This category allows for employment in three year increments for a total of six years; however, the six year limit can be extended if the employee is in the process of pursuing permanent residence through employment.
Pros and Cons of the H-1B Category
The H-1B category does not involve the potential of a two year home residence requirement as is the case with the J-1 category. In addition, because the employing school district is eligible to sponsor its employee directly, there are no required contractual relationships with third party organizations. For these reasons, the H-1B is the more desirable option, if available.
To qualify for H-1B classification, the employee must be fully qualified for the position at the time of filing. For teachers, this means they must hold DPI licensure at the time of filing and that licensure must be valid for the duration of the requested period of sponsorship or the petition will only be approved for the duration of the license. Foreign educated teachers are often licensed initially under a one year license, with stipulations, which therefore limits the H-1B validity. It is advisable, if possible, to pursue a guest teacher license, which is valid for three years and can be extended for an additional three years. Wis. Admin. Code PI 34.030.
If the shorter license is necessary, the H-1B can be extended, this just means that additional filings are required and additional expense is incurred. Often the more significant complication with the licensing requirement is the timing. Obtaining approval of the supporting petition can take several months (3 – 5 months for initial classification is typical). If the teacher is outside the U.S., the petition approval then has to be used to acquire a visa for travel, which can take several more months. Given the amount of time required and the licensing process, managing this timing can be difficult. It is possible to speed up the initial H-1B processing times, but it will cost an additional $2,500 filing fee.
The cost of the H-1B process can be a deterrent to its use as well. The initial H-1B petition requires $960 in filing fees and, as mentioned, frequently requires an expedited fee of an additional $2,500. Also, because the filing process is complex, the assistance of experienced legal counsel is generally required.
The H-1B Quota
Most employers encounter difficulty in hiring H-1B employees because the category is subject to an annual quota applicable to first time applicants. The quota is limited to such a degree that each year approximately one-third of applicants receive spots, while the remainder are unable to qualify. Fortunately, there are exemptions to the annual quota and most, if not all, school districts will qualify for an exemption. School districts may qualify for an exemption from the quota based on the district’s affiliation with an institution of higher education. The affiliation must be evidenced by a written agreement, but beyond that the affiliation need only provide some benefit to the higher education institution, such as the school district serving as a placement for student teaching opportunities for education students. If such an agreement is in place, then the district can qualify for an exemption.
The H-1B category can be used as the initial basis for teachers’ or other professionals’ employment, or in the case of teachers, can be used after the J-1 period is used as a way to extend employment eligibility.
As shortages of education professionals persist, particularly in certain subject areas, such as bilingual educators, access to qualified foreign talent will become increasingly necessary. School districts have options available to them to recruit foreign professionals. Doing so, comes with the obligation to navigate the federal immigration system. However, with appropriate advance planning and experienced assistance, school districts can successfully hire foreign nationals to assist in alleviating some of recruiting difficulties experienced due to chronic educator shortages.
 J-1 programs exist for students as well both at the high school and post-secondary level; however, this discussion is focused on the employment side.
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or your Renning, Lewis & Lacy attorney.