Q. I've just been offered a job at Stanford. What kind of visa should I use?
A. Many fixed term research positions can and should be accommodated by the University’s J-1 program: It is the preferred classification for postdocs, fixed-term research associates and visiting faculty of all types. Regular staff and some other employees may fit into the conditions of the H-1 program, however. Also note that F-1 students on Post-Completion practical training can continue working while in F-1 visa status until the expiration date of the EAD card, but should take timely steps to change their visa status before the expiration of the practical training. While there are many other types of nonimmigrant visas, they are not used at Stanford because they are inappropriate to the functions of an academic institution, have no application to the type of work done at the University, or because Stanford is not eligible to file certain types of petitions.
Q. What are the differences between the J-1 and the H-1 visas?
A. The J-1 is the category of nonimmigrant visa used by the United States Department of State to operate its Exchange Visitor Program. The EVP is intended to foster international social, scientific and cultural exchange. Many if not most program sponsors are universities, where the environment for such exchange is acknowledged to be highly rewarding and productive. Large corporations also maintain programs, and a few organizations are chartered specifically to host exchange visitors on a contractual basis.
Program sponsors issue the DS-2019, Certificate of Eligibility for Exchange Visitor Status. The DS-2019 is presented to the US Consul in a prospective visitor's home country for issuance of the J-1 visa in the passport.
The H-1 is a "specialty occupation" visa for temporary employment. There are many versions of the H-1, intended by use for nurses, seasonal or cyclical work, DoD-funded projects, entertainers, athletes and so on. The version used by universities is known as the H-1B. An employer wanting to hire an H-1 worker must file a petition with the Department of Homeland Security. The petition has to demonstrate that the job in question is one that requires special preparation, and that the person for whom the petition is being filed has that education or preparation. Associated fees total almost $1,200, including “premium processing,” of which the hiring department is responsible for no less than $500. Processing time at the Homeland’s Security’s Citizenship and Immigration Services unit is 15 calendar days.
When CIS responds affirmatively to an H-1 petition, an "approval" is issued to the employer.
In many cases, the employee is already in the United States. In this case, the Homeland Security will change the status of the employee, if such action is requested on the petition, and the employee is eligible for the change. (Prospective) employees may also wait outside the US for an approval. H-1 status may be held for an aggregate period of six years, with each approval not to exceed three years.
Individuals are sometimes inclined to believe that the H visa has an inherent advantage over the J, that it is a "better" type of visa to have in a qualitative, progressive or incremental sense, or that it is a prerequisite to having a green card. None of these things is true. It is true, however, that:
- the J visa program may impose a requirement on the user to return to the home country, in the event that the country appears on the skills list, or in the event money from the visitor's country or the United States was used to fund the program. (The requirement prohibits the change of status to H or permanent residence for a period of two years after the program ends.);
- the dependents of the J-1 may apply for work authorization;
- there is a nominal three-year limit on the use of the J program;
- the H visa holder enjoys "dual intent" provisions that exempt him or her from the presumption of immigrant intent (see question below)
Q. Why is the H visa apparently exempt from requirements that are enforced for other visa types?
A. Congress declared that the H visa should be a dual-intent classification. As such, it is not relevant to an application for an H visa to determine whether you intend to return to your home country, or perhaps plan to remain in the US indefinitely.
When reviewing an application for most nonimmigrant visa types, a consul approaches the case with the presumption that the applicant intends to remain in the US permanently. Only when the consul is convinced, through whatever mechanism, that the applicant does not intend to immigrate can he or she grant the visa. For H visas, this test of intent is not necessary.
Q: Who can use H-1B status?
A: H-1B visa status is appropriate to those working in what the Immigration Service refers to as "specialty occupations", ie. the field of endeavor must be one in which a Bachelor's degree would be considered a minimum requirement, and the alien must possess at least that degree or its foreign equivalent. At Stanford, H-1B status may be petitioned for on behalf of certain employees who meet the criteria noted above and who are paid a wage by Stanford for services rendered. Matriculated students, visiting scholars and other individuals who do not have a regular payment-for services rendered relationship with Stanford would not be so eligible. Researchers who hope to be supported by fellowships or other non-salary means may not use H-1 status.
Q: I hear that Canadians may have an other option?
A: Canadians on Stanford payroll can often use TN-1 status rather than H-1. Based on the Free Trade Agreement between the US and Canada (NAFTA), Canadians engaged in certain professions (as listed in Schedule 2 of the agreement) may apply for TN-1 status. This visa status is most easily obtained by a Canadian citizen at a border crossing and is generally adjudicated within two to three hours.
Q: What will complicate the H-lB application process?
A: Certain aliens in J-1 status may not be able to change their status; because they have a Residence Requirement. This is usually noted on either/both the DS-2019 and visa page of the passport as a liability under “section 212(e).” In this case, a waiver must be secured before an H-1 petition can be advanced.
