Professors and Educators

University level instructors can pursue a number of different avenues to live and work in the United States.  Initially, many instructors come to the United States using the H-1B visa process.  The H-1B is for a specialty occupation, which is an occupation requiring a baccalaureate degree or its equivalent as the minimum requirement for the position.

On March 28, 2005, new regulations entitled the Program Electronic Review Management (PERM) went into force.  These new regulations govern all labor certification cases.  Under the old system of labor certification a college or university instructor could use a process called "special handling".  The special feature of the old system was expedited processing of applications; a feature that does not exist in the new system.

Under the regulations a university or college can hire a foreign national because they deem the person to be more qualified than a U.S. worker.  This is much different from the regular process of labor certification, which requires that no U.S. worker who meets the minimum qualifications for the job submit an application.

To use the new optional labor certification process the university or college must have found the non citizen employee to be more qualified than U.S. workers after conducting a competitive recruitment.  The labor certification must be filed within 18 months of the employee's selection pursuant to the competitive recruitment.  Note that it is not the day the employee starts work or the date the recruitment is completed, but the date selection is made that triggers the start of the 18 months.

Of course the non citizen and his employer are also free to use the regular PERM labor certification process.  In some cases, such as the case where the 18 month period has passed, the regular process must be used.

Instructor may still use the National Interest Waiver (NIW) process if they meet the standards for such a waiver established in the In re New York State Department of Transpor, I. & N. Dec. 215 (Comm'r 1998) case.  The NYSDOT case requires that a three prong test be met prior to the grant of a NIW.  The three prongs require that: (1) the non citizen seek employment in an area of intrinsic merit, that is (2) national in scope, and (3) that the applicant ". . . present a national benefit so great as to outweigh the national interest inherent in the labor certification process."  These NIW cases are tough to present and it is the third prong of the test that proves to be most problematic.  If it is possible to secure permanent residence through other means then those means should be explored first and the NIW should be maintained only as a last resort.

Another option may be a first preference petition for an alien of exceptional ability depending upon the background and qualifications of the instructor.

Additionally, if the instructor enters into a bona fide marriage to a U.S. citizen they can also obtain permanent residence through the immediate relative process.

There may also be other possibilities for permanent residence, but the above are the most prevalently used.