DUFF, WHITE & TURNER, L.L.C.
Attorneys and Counselors at Law

SCHOOL LAW
"ISSUE OF THE MONTH"
May 2008

HIRING INTERNATIONAL TEACHERS UNDER H-1B VISAS

Many South Carolina school districts employ international teachers who are eligible for employment as a teacher in the United States under the visa known as the J-1. The J-1 visa permits international teachers to teach in this country for up to three years and is made possible through a cultural exchange program authorized and administered by the United States Department of State. In view of the continuing difficulties S.C. school districts face in filling teacher vacancies, districts frequently inquire about retaining international teachers beyond the three-year, J-1 visa period by sponsoring these teachers through the H-1B visa process.

The H-1B visa allows United States employers to employ foreign guest workers skilled in specialty occupations if a U.S. citizen or resident is not available. Public school teachers generally qualify as having a specialty occupation, thus allowing school districts to hire international teachers through the H-1B visa process in situations where districts have been unable to fill vacancies. H-1B visas are generally issued for an initial term of 3 years and may be extended up to an additional 3 years. Districts should be aware, however, that the H-1B visa process requires the district to apply for the H-1B visa on the international teacher's behalf, as the teacher's sponsor. This sponsorship imposes additional obligations on the district, such as the expenses involved with the teacher returning to his or her home country if the district terminates the employment. Districts also should be aware of the home country requirement which, absent a waiver, mandates that the teacher return to his or her home country at the expiration of the J-1 visa for at least a two-year period before seeking another visa, whether it be another J-1 visa or the H-1B visa.

Because the H-1B visa is a dual intent visa (meaning that the international teacher may seek permanent residency while continuing to work on the visa), there is a great demand for H-1B visas and there are only a limited number of H-1B visas issued: 65,000 each fiscal year. In addition to the limited availability of such visas, the timelines imposed by the H-1B visa process pose scheduling difficulties for school districts. Specifically, the visa holder cannot begin work until the effective date of the H-1B visa, which is October 1, the start of the federal government's fiscal year. However, districts may attempt to seek a H-1B cap exempt visa, which is not subject to fiscal year timelines. The H-1B visa cap exemption is afforded to "non-profit institutions related to or affiliated with an institution of higher education." The United States Citizenship and Immigration Services has indicated that it intends to take a serious look at what it considers to be an overuse of this exemption by public school districts. For all of these reasons, districts must consider the possibility that H-1B visa applications may be denied.

There are a number of organizations that work with S.C. school districts to recruit and place international teachers. Additionally, the State Department of Education (SDE) has contractual agreements with the governments of certain countries, such as India, that enable the SDE to recruit teachers from those countries under the J-1 visa process. In the case of India, the Indian government, in turn, has a contract with Teachers Placement Group (TPG) to assist the Indian government in fulfilling its contractual obligations with the SDE. S.C. districts contract with the SDE for the placement of international teachers, who then sign contracts with TPG. All 2007-08 contracts between the SDE and school districts contain language that prohibits those districts from sponsoring international teachers for H-1B visas, and continuing to employ them beyond the expiration of their J-1 visas, if those teachers were placed through the SDE program. The contract prohibition also applies if those districts seek to sponsor and hire teachers from other districts whose J-1 visa is set to expire. If the SDE permits districts to seek H-1B visas for those J-1 teachers employed through the SDE program, the SDE has expressed concern that the U.S. Department of State could revoke the SDE's designation as a sponsor for international teachers. If the U.S. Department of State were to take such action, the SDE would be prohibited from recruiting any J-1 visa teachers on behalf of S.C. districts.

The SDE has indicated that, pursuant to its recruitment agreements with other countries, it may immediately cancel the J-1 visa of any international teacher who requests a waiver from the two-year home country requirement. Also, should districts sponsor any teacher working pursuant to a J-1 visa for an H-1B visa, whether that teacher is presently employed by the district or by another district contracted with the SDE, the SDE has the authority to immediately remove all international teachers placed pursuant to the SDE agreement. Further, the SDE may refuse to place any international teachers with the district in the future. The SDE has already imposed this sanction on at least one S.C. school district. Although unlikely, the SDE also could file a lawsuit against a district for breach of contract. TPG, or other placement organizations, also could pursue a breach of contract action against individual teachers. At least one such organization has taken this step in South Carolina.

Although S.C. school districts may be contractually obligated to the SDE or other recruiting entities not to pursue H-1B visasfor its international teachers, that obligation does not affect the legality of the H-1B visas obtained by a district. However, if a district decides to proceed with the H-1B visa process on behalf of a teacher currently serving under a J-1 visa, districts should be aware of the potential ramifications for the district and the individual teachers.

If you have any questions about hiring international teachers, please feel free to contact this firm.