Immigration Law Insights

While students across the country are getting ready for spring break, school districts are already preparing to hire teachers for the next academic cycle.  Many districts are suffering from a nationwide teaching shortage and are increasingly turning to foreign nationals to fill open positions.  Federal immigration laws now permit certain school districts to file H-1B petitions throughout the year which has drastically reduced some of the challenges of hiring and retaining qualified teachers.

School districts have long utilized the H-1B visa to employ foreign nationals because of the advantages it provides over other immigration strategies, including an easy transition to permanent employment on a green card.  Many H-1B petitions are subject to an annual cap, which historically led USCIS to institute a random lottery to determine who would receive an H-1B slot.  In Fiscal Year 2021, the lottery process will no longer apply and will be replaced by a registration period.  The good news for public school districts is that the H-1B cap does not apply if certain requirements are met.

In order to qualify as exempt from the H-1B cap, school districts must have entered into a formal written affiliation agreement with an institution of higher education.  Dual Enrollment Agreements between districts and a college or university, under which students may obtain college and high school credit for taking specific courses, typically meet the affiliation agreement requirement.

School districts and foreign national teachers both enjoy distinct advantages from the H-1B program.  For example, utilization of the H-1B program allows districts to directly control the hiring process without coordinating with a visa sponsor organization, as required by the J-visa.  H-1B visa holders also avoid a two (2) year home residency requirement that is often incorporated into the J-visa program.  School districts can also transition H-1B teachers relatively easily to a green card, which provides a long-term immigration strategy.

The H-1B program provides a number of different advantages for school districts and teachers.  With possible H-1B program changes on the horizon, qualifying school districts might consider utilizing the H-1B program to fill their staffing needs.