Hiring and retaining talent: Immigration for educational institutions

A primer for filing temporary and permanent petitions for foreign workers.
Lauren Sigg
Megan Naughton

College and universities are tasked with providing the best possible higher education for students throughout the country. In doing so, many institutions recruit talent from around the world. These foreign nationals teach courses, engage with and advise students, improve academic programs and ensure that the school runs effectively, among other roles. In order to hire and then retain international talent, many colleges and universities routinely file temporary (nonimmigrant) or permanent (green card/immigrant) petitions for these foreign workers. We will discuss below some of the most common nonimmigrant and immigrant options for colleges and universities, along with some considerations when determining and selecting the correct category.


The H-1B visa category is the most common nonimmigrant visa category for institutions of higher education. To be eligible for H-1B status, the role must require at least a bachelor’s degree in a specific field (or a body of specialized knowledge typically obtained through specific college level coursework) and the applicant must have a related degree/coursework. While this is not typically an issue for most roles within higher education, if can be a challenge for more unique roles, such as administrative roles, advisors, or coaching positions. Furthermore, the degree requirement can be in conflict with some liberal arts institutions, which prefer candidates with a range of experience/background (rather than a specific degree). Colleges and universities are exempt from the annual H-1B cap, so there is no H-1B lottery to be concerned about. There is a prevailing wage requirement, however, so salary can be an issue, depending on the role/pay structure. H-1B workers are eligible for a maximum of six years in H-1B status, granted in up to three-year increments, unless the worker reaches certain stages in the green card process.


TN status allows citizens of Canada and Mexico to work in the U.S. in certain pre-determined occupations. These occupations include college and university teachers, certain scientists (including biologists, chemists, etc.), accountants, librarians, and computer systems analysts, among others.  The individual also must have the required qualifications for the occupation, typically at least a related bachelor’s degree. The TN process is relatively quick; Canadian nationals can apply directly at the border or international airport and Mexican nationals can apply at a U.S. consulate or embassy outside of the U.S. TN workers are eligible for TN status in three-year increments, with no maximum limit on extensions, as long as the individual maintains sufficient nonimmigrant intent/ties to their home country.


J-1 status allows foreign nationals to come to the U.S. temporarily as an exchange visitor. There are a number of different J-1 exchange visitor categories, from au-pairs to professors. The most common for higher education is research scholars and professors. Importantly, if the school has been designated by the Department of State for a specific category, the school can issue its own DS-2019 forms (required for J-1 status). While J-1 status is a great option for some exchange visitors, it is not appropriate for tenure-track roles and the individual can become subject to a two-year home residency requirement if they received funding from the U.S. or a foreign government, receive graduate medical training, or their program is listed on the Exchange Visitor Skills List.


Those who are extraordinary in their field and have achieved either national or international acclaim may be eligible to petition for O-1 status to work in the United States. Given that colleges and universities are exempt from the H-1B cap, we typically see O-1 petitions for individuals who are subject to a two-year home residency requirement or are not otherwise eligible for H-1B status. This category requires a good deal of evidence, including referee letters, publications, presentations, etc. While there is no maximum period in O-1 status, O-1 status can be granted for an initial three-year period, with one-year extensions.


Colleges and universities might also ultimately want to keep the foreign national on a permanent basis. There are several green card (immigrant) options that could be appropriate, depending on the role and individual circumstances.

Special Handling

There is a unique process (called Special Handling) for Labor Certifications for teaching roles at colleges or universities. Under Special Handling, the college or university can move forward with a green card case for an individual without demonstrating a shortage in the U.S. labor market. Specifically, to qualify for Special Handling, the school would need to have posted the job in at least one national professional print journal, or for at least 30 days with an online professional journal, and must have selected the individual as part of a competitive selection process. Special Handling also requires obtaining an official prevailing wage determination from the U.S. Department of Labor and posting a legal notice at the work location. It is important to note that timing can be an issue for Special Handling cases, as the Labor Certification must be submitted within 18 months of the date of selection (typically the offer date).

Other Roles/Green Card Options

For cases/roles that are not eligible for Special Handling–administrative roles, for example–the green card route most often involves proving a shortage of U.S. workers through an advertising campaign. The employer must identify the worker or workers to be sponsored, obtain an official prevailing wage determination from the U.S. Department of Labor, post legal notice, and conduct an ad campaign to demonstrate the shortage. Then, if no qualified, able, willing or available U.S. workers apply, the application can be filed.

Alternatively, an outstanding professor petition or National Interest Waiver also could be an option for some employees. For an Outstanding Professor petition, the individual would need to show that they have at least three years of teaching experience and have gained national/international recognition in their field. An Outstanding Professor petition has very similar criteria/evidence as is required for an O-1 petition. For a National Interest Waiver, the individual would need to show that it is in the country’s best interest to waive the recruitment requirement.


With all of the options above, the H-1B cap exempt status for institutions of higher education and Special Handling green cards for teaching roles are unique to colleges and universities and demonstrate the importance placed on continuing to allow the best and brightest from around the world to teach U.S. students.  Although there are limitations on other categories and/or restrictions for positions outside of teaching, there are a variety of options that can be explored.

Lauren Sigg is a Partner in Robinson+Cole’s Immigration Group. Lauren represents institutions of higher education and entities affiliated with them, including hospitals and health centers, in matters involving H-1B petitions, providing advice regarding J-1 issues, and preparing/filing green card cases.  She also helps multinational companies and organizations secure appropriate immigration status for their employees.

Megan R. Naughton is co-chair of Robinson+Cole’s immigration group and has more than two decades of experience handling U.S. business immigration matters. She represents a wide range of clients, from startup to Fortune 500 companies, in a variety of industries, including financial services, insurance, technology, manufacturing and higher education.


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