Overview of VISA Types and Institution Roles
The following is a brief introduction to the most common types of visas that may be encountered on MnSCU campuses, together with notes about the institution's responsibilities. This information is not meant to be definitive or comprehensive and further consultation with designated campus personnel, the OGC, or an immigration attorney will be required to deal with most situations.
B-2 Prospective Student or Prospective Scholar Visa. In general. This visa is used primarily for students who intend to study in the United States, but no F-1 or J-1 visa has been obtained. This may be because a final selection of a school has not been made, or timing or other circumstances have interfered with obtaining the F or J visa.
Study restrictions. A B-2 visa holder cannot begin a course of study or student employment until his or her application for a change of status to F-1, M-1, or J-1 is approved. This is a change in policy and B-2 visa holders must be careful not to begin a course of study that is unauthorized.
Employment restrictions. In general, employment not permitted while in B-2 status. Once status changed to F or J, may work as allowed under that classification.
Institution responsibilities. Assist the prospective student in understanding status restrictions. To be considered a prospective student, visa must have "prospective student" annotation; a simple B-2 visitor's visa is not considered sufficient. B-2 visitor visa holders may, in fact, be denied a change in status if the INS believes the student entered the United States by misrepresenting his intent to study. It may be advisable for B-2 visa holders to re-enter the United States with a visa specifically for students.
Change in status applications even for "prospective students" will take considerable time to process. The individual is not eligible to study or work until a change of status is approved.
F-1 Visa. In general. This is the most common student visa. It is issued for individuals who are engaged in full-time studies in an accredited educational program, including colleges and universities. (Students enrolled in vocational training are given M-1 visas, see below.)
Study restrictions. F-1 visa holders must maintain full-time enrollment status as defined by the institution; part-time study is allowed only with approval of the institution's Designated School Official (DSO) in accordance with INS guidelines.
Employment restrictions. F-1 visa holders may be employed on the campus of the school they are authorized to attend for a maximum of 20 hours per week while classes are in session. Part-time, on-campus employment is authorized by the school, and prior USCIS approval is not required. During school vacations, F-1 students may work on campus for a maximum of 40 hours per week if otherwise eligible and intending to enroll for the next term.
Certain F-1 visa holders who have been determined to be in circumstances of "economic hardship" may be approved by the INS to work off-campus.
F-1 visa holders may participate in employment that is directly related to field of study as follows:
- Curricular Practical Training. Employment required for completion of the student's degree program. Requires approval of the DSO on Form I-20ID. Employment Authorization Document (EAD) is not required. Employment authorization is employer-specific.
- Optional Practical Training. Employment during or after completion of studies, not to exceed 12 months in total duration. Requires recommendation of DSO and approval of INS. EAD issued by INS required.
Institution responsibilities: The college or university must obtain INS approval to enroll F-1 students, and then must appoint "Designated School Officials" (DSO) to perform the required administrative functions. Among other things, the DSO issues to students the I-20 form that is used by them to obtain the F-1 visa.
The DSO may issue an I-20 form only after ascertaining that the following conditions have been met:
- written application from student;
- student has appropriate academic credentials;
- student has adequate English skills for the intended course of study;
- student has sufficient financial resources to support himself and meet expenses during course of study (at least for the first year);
- student has been accepted into a program which constitutes a "full course of study."
Failure to comply with the requirements of issuing the I-20 may result in withdrawal of the school's approval to enroll nonimmigrant students.
The school is required to maintain and report information about each F-1 student via the electronic system: Student Exchange Visitor Information System (SEVIS). Extensive resources on SEVIS compliance may be found at: www.ice.gov/sevis/.
Immigration officials have access to certain information that is required to be kept by the school on F-1 students. SEVIS requires disclosure of certain information on a periodic basis throughout a student's enrollment. The DSO should advise all F-1 students of this legal responsibility. Inquiries for information on F-1 students from entities other than immigration officials must be handled like any other requests for student records in accordance with the school's standard FERPA/Data Practices procedures.
H-1B Visa. In general. This visa is for "Temporary Workers in Specialty Occupations." Persons holding this visa are allowed entry to perform professional services for a sponsoring employer in a specific position for a fixed period of time. The initial period is up to three years and extensions for an additional three years are possible, for a maximum of six years.
Study restrictions. May engage in incidental studies while on H status.
Employment restrictions. Employment is permitted only with the institution that obtained INS approval for the visa classification, and payments from other organizations generally are prohibited. The H-1B employee who wants to transfer to another MnSCU college or university will need a new petition if the employer's tax ID number is different. However, individuals may receive INS approval to work in H-1B status for more than one employer at a time; each employer must petition INS and receive approval; EAD not required; 240 day rule applies.*
*240 day rule If the employer files a timely extension of stay petition, the employee may continue to work for a period not to exceed 240 days while the application is pending, beginning on the date of expiration of the authorized period of stay. If INS denies the application for the extension of stay, employment authorization automatically expires on the date of the INS's notification of denial.
Institution responsibilities. The employer is technically the petitioner for an H-1B visa. The employer must document that the position offered is in one of the designated specialty occupations; that the employee has the appropriate credentials; that it will pay the H-1B worker the prevailing wage for the work; and that the employment of a foreign worker is not harming conditions for United States workers.
There are several steps to obtaining an H-1B visa. The employee may not begin work until approved by the USCIS. The first step is to obtain approval of the United States Department of Labor reporting wage information about the petition. The DOL reviews and approves the submission, which is provided to the USCIS along with other documents in the H-1B petition package.
The employer makes certain attestations to the DOL relating to ensuring that the United States wages are not depressed by hiring the foreign worker and that the foreign workers are not exploited. The employer must notify the bargaining representative if the position subject to the petition is unionized.
Within one day of filing the LCA and other documents required for the H-1B petition, the employer must establish a public access file containing certain information pertaining to the wages for the H-1B worker. Other information is also required to be maintained relating to the H-1B position that may not be public, but readily available for review by the DOL upon request.
The DOL is supposed to certify the LCA within seven days of submission, but this is often not the case. Once approved, an LCA is valid for three years.
The employer next submits the petition for the H-1B visa to the USCIS. Along with the LCA, the employer submits additional information to convince the USCIS that: the employer has a legitimate need for a "specialty occupation worker;" the position offered is in a "specialty occupation;" and the prospective employee is qualified for the position. A filing fee is required.
USCIS review and approval of the H-1B petition generally takes up to three months. However, the USCIS offered "premium" processing for an additional $1,000 fee. If premium processing is requested, the USCIS will complete its review within fourteen days.
The Office of General Counsel, Minnesota State Colleges and Universities, has issued an advisory memo on the topic of payment of attorney fees and costs associated with obtaining an H-1B visa. In general, MnSCU colleges or universities that need professional assistance in processing H-1B petitions are advised that under INS regulations, they, as employers, must pay for professional services, costs, or fees related to obtaining the H-1B visa, including the $1,000 "premium" processing fee. For assistance in locating or contracting with immigration experts, please contact Deputy General Counsel Kris Kaplan at the MnSCU Office of General Counsel at (651) 201-1749.
J-1 Exchange Visitor (Student) Visa. In general. This is the visa for exchange visitors in the U.S. for the primary purpose of studying at an academic institution under the auspices of the United States Information Agency (USIA) and a designated program sponsor. Information about J-1 visa holders is subject to SEVIS reporting requirements, as for F-1 students.
Study restrictions. Must maintain full-time enrollment. May engage in part-time study only if authorized by Responsible Officer (RO) of designated program sponsor.
Employment restrictions. May be employed on the campus of the school in which they are enrolled to a maximum of 20 hours per week with prior written authorization from the RO of their designated program. May work off campus under limited circumstances with prior written authorization from the RO. Employment does not require additional permission from USCIS or EAD. 240 day rule applies. Eligible for up to 18 months of academic training following completion of program.
Institution requirements: Colleges or universities that wish to sponsor J-1 exchange students must have their programs approved by the United States Department of State (DOS). A consortium of schools may, as a single entity, apply for designation as a sponsor. To obtain DOS approval for a consortium, each individual school must meet the citizenship eligibility requirements, but the consortium collectively may meet some of the administrative requirements such as the minimum five exchanges per year.
With the application, the school submits the name(s) of a Responsible Officer (RO) and Assistant ROs who have certain duties to properly administer the program. Some of the sponsor's (usually through the RO) most important duties include: completing the IAP-66 form that signifies eligibility for each student participant; making required reports to the DOS; maintaining required records, and providing appropriate advice and assistance to exchange students.
Note: Many J-1 visa holders are required to return to their home countries for two years before applying for an immigrant visa or permanent residency in the U.S. This requirement is subject to a waiver procedure, however. A college or university wishing to hire a J-1 visa holder must be aware of this issue and the potential bar to hiring.
J-1 Exchange Visitor (Short term scholar, professor, researcher, or specialist). In general. Individuals in the U.S. as visiting researchers, professors, short-term scholars, or specialists under the auspices of the USIA and a designated program sponsor.
Study restrictions. May engage only in part-time incidental study, provided program can be completed within limitations of stay. May not enroll in a formal degree-granting academic program while in J-1 status as a professor, researcher, short-term scholar, or specialist.
Employment restrictions. May be employed only by the designated program sponsor or appropriate designee, and within the guidelines of the program approved by USIA for the period of validity as stated on the IAP-66. Under limited circumstances, may receive compensation from other institutions provided has prior written authorization from the RO. Form IAP-66 authorizes employment. EAD is not required.
Institution requirements: Like its responsibilities related to the J-1 exchange students, the sponsoring institution for the J-1 exchange scholar issues the IAP-66 form that describes the covered activities, and thereafter monitors program participants to ensure that they are engaging in activities described on the form, that they are making reasonable progress, and maintains a current address and phone number for each participant. The same record-keeping and reporting responsibilities for the institution are in place for all J-1 exchange participants.
M-1 Visa. In general. This is a visa for students attending a technical or vocational program. The F-1 visa is for students engaged in academic studies. (See above.) SEVIS reporting requirements also apply to M-1 students.
TN. In general. This is a visa created by NAFTA for Canadian and Mexican citizens. Individuals in TN status are allowed to perform professional services for a sponsoring employer in a specific position for a fixed period of time: generally up to one year increments with no cumulative time limit (although intent is "temporary").
Study restrictions. Must study full-time; part-time study only if authorized by DSO.
Employment restrictions. Unlike F-1 students, M-1 students may not be employed while completing their studies. May be employed for practical training following completion of studies for a maximum of six months. Must apply to USCIS for EAD. Employment must be related to field of study and recommended by DSO through endorsement of I-20. Employer must re-verify authorization by the expiration date on the EAD.
Institution requirements: Similar to its responsibilities in sponsoring F-1 students, the college or university sponsoring M-1 students must first obtain program approval from the USCIS. Approved schools may then issue form I-20 M-N to eligible students, which they use to obtain the M-1 visa. The school must decide, based on the student's goals, whether an F-1 or M-1 visa is appropriate; an M-1 visa holder is generally not eligible to change to an F-1.
Study restrictions. May engage in incidental study while in TN status.
Employment restrictions. May be employed and compensated only by the sponsoring employer through which the status was obtained. Canadians require only an I-94 card as employment authorization. Mexicans require INS Form I-797A; EAD not required. 240 day rule applies. May be employed by more than one employer simultaneously, but must obtain TN status for each employer.
Institution requirements: The sponsoring employer of the TN visa holder has different responsibilities depending on whether the employee is Canadian or Mexican. However, for each, the threshold issue is determining whether the position is one of the NAFTA - specified professional occupations.
A college or university teacher is one of the listed occupations. If the position is NAFTA-specified, the school issues to the Canadian TN applicant a detailed letter describing the offered job and other information. The Canadian applicant then must simply present this letter along with other required documentation to an INS inspector when crossing the border. No visa is issued, but a Form I-94 will be provided with "TN" annotation.
For Mexican citizens, the TN visa process is more complicated and is quite similar to the H-1B procedure. The employer must obtain an approved LCA (form ETA-9035) and petition the INS for TN approval using Form I-129, supported by the approved LCA, and other required documentation. The Mexican citizen then applies for the TN visa with the approved petition.