Focus

Immigration Status of Immersion School Faculty

by JENNY ZANNER

Staffing increasingly popular language immersion programs can present this challenge to administrators: How does a school district recruit and retain native-speaker teachers who are not permanent residents or U.S. citizens?

 

At a minimum, a school district must support the temporary nonimmigrant status and work authorization of any employee who is not a permanent resident or U.S. citizen. Districts that seek to maintain high-quality language immersion programs hold a significant competitive advantage if they are willing to sponsor candidates in their permanent residence process.

ZannerJenny Zanner

The short-term challenge is this: Preserving temporary work authorization. School leaders might find qualified candidates who are in the United States with F-1, J-1 or H-1B nonimmigrant status.

F-1 visas are available to foreign students studying at postsecondary institutions. Individuals in F-1 status are permitted to work in certain circumstances while they attend school and for up to one year afterward.

J-1 visa holders are in the United States participating in training programs as exchange visitors. Many J visa holders must return to their home country for two years after the training program is over. Waivers of the two-year foreign residency requirement exist for some individuals who meet particular requirements.

H-1B workers are employed in specialty occupations. The latter individuals, as defined by the relevant immigration laws, are considered professional in nature, requiring a bachelor’s degree or foreign equivalent. Every year, the U.S. Citizenship and Immigration Services limits the number of H-1B workers to 65,000. This limit is known as the cap, and individuals for whom a visa is obtained are considered to be counted under the cap.

Once counted, an H-1B worker is permitted six years of work-authorized stay in the United States, after which he or she must leave for one year before seeking admission again in H-1B status. H-1B workers are able to move from one employer to another without being counted again under the cap as long as they move into a job that is essentially the same as the position on which their previous H-1B status has been based.

H-1B workers also are able to pursue permanent residence. H-1B status may be extended beyond the six-year limit if the employer has taken certain steps toward sponsoring the employee for permanent residence.

Teachers often are good candidates for H-1B status. Successfully recruiting a teacher who is in F or J status or who currently works for another school district in H-1B status might involve filing a petition on that teacher’s behalf with the U.S. Citizenship and Immigration Services. Both the position and the teacher must qualify for H-1B status.

Long-Term Status
If the employee is eligible to pursue permanent residence and the school district wishes to sponsor him or her, two crucial questions arise:

What are the requirements of the position in which the candidate will work as a permanent resident?

Does the candidate meet the requirements of that position?

The answers determine the immigration category within which the employee and the position can be classified. This affects, in large part, how long the application process will take.

A school district sponsoring an employee for permanent residence first will be required to prove to the Department of Labor that it has tested the labor market through vigorous recruitment for the position and that the salary offered is at or above the regional prevailing wage. The labor certification process differs considerably from typical personnel recruitment.

Upon the approval of the labor certification, the school district will begin the second step — filing an immigrant petition with the U.S. Citizenship and Immigration Services. Through this, the district demonstrates the candidate is qualified to fill the position, and the employee and position are appropriately classified.

Potential Challenges
Many school districts struggle with the fact that an employee who needs immigration support will incur costs, notably legal fees, agency filing fees and other charges that can amount to thousands of dollars. As permanent residency is a highly valued benefit to the employee, this investment sometimes is considered by bargaining units to be a de facto raise. The district’s goal in establishing and maintaining its language programming ought to be shared by the administration and the bargaining unit.

Many districts, in the interest of cost savings, will attempt to navigate the immigration world in-house. These are extremely complicated processes, and great care must be taken to properly prepare these filings. Preventing denial of a petition in the first place is certainly more cost-effective than losing a valuable employee, or arranging coverage for that employee if, without status, he or she must wait outside the United States.

Because, by law, the employment-based immigration process is driven by the employer, the school district should retain its own immigration counsel. Doing so allows the district to assess, and hopefully avoid, conflicts of interest that may develop between employer and employee and to develop consistent policies and procedures regarding sponsorship of staff members.

Native speakers of target languages are important, often essential, to the success of language instruction and immersion programs in schools. These individuals are in extremely high demand in locations where the target language is not commonly spoken. Navigating the complicated territory of employment-based immigration on behalf of these valuable employees provides a significant advantage in recruitment and retention and ultimately can determine the long-term success of a language immersion program.

Jenny Zanner is an immigration attorney in St. Paul, Minn. E-mail: jenny@zannerlaw.com