Answers for Professors and Researchers

Overview
Temporary Visits
Temporary Work Visas
Options for Permanent Residency
Immigration Assistance for Researchers and Professors

Overview of Immigration Options for Professors and Researchers

Because America's prosperity and well-being depends heavily on its ability to stay ahead of world competition in science and technology, highly qualified professors and researchers generally have a larger-than-normal variety of available immigration options. There are also several pitfalls to avoid. The most common potential pitfall, of course, is the J-1 visa's two-year home country residence requirement for those: a) who come from countries with a "skills list": b) who came to the United States for graduate medical education; or c) whose exchange was financed by the U.S. or home-country government.

Temporary Visits to the United States

There are several different visa classifications that may be available for professors or researchers to visit the United States for a short period, such as the B-1 Business Visitor or Visa Waiver Program. If you do not meet the criteria for these types of visas, you should consider the J-1 Exchange Visitor or H-1B visa status. The choice of which to choose depends on your qualifications and the activities you expect to perform in the United States.

B-1 (Business Visitor) Visa

A B-1 (Business Visitor) visa may be available for a variety of activities in the United States. Professors or researchers may generally use the B-1 visa to participate in a conference or seminar, to engage in usual academic activities such as lecturing, or to perform brief independent research. This visa requires that you not be paid from a U.S. source, other than for certain expenses incidental to the visit. If you will receive an honorarium in addition to incidental expenses, you may still be eligible for the B-1 visa provided all of the following are met:

the activities will last no longer than nine days at any one institution;
the institution is a nonprofit research organization or a governmental research organization, or an institution of higher education, or a related or affiliated nonprofit entity;
such activities are conducted for the benefit of the institution or entity; and
you have not accepted such payments or expenses from five such institutions during the previous six month period.

If the proposed activities do not meet these criteria, you should consider the Visa Waiver Program, the J-1 exchange visitor, or H-1B Specialty Occupation visa.

Visa Waiver Program

Visitors from many European countries, as well as Japan, can enter the United States with no visa at all under the visa waiver program. If you enter using the visa waiver program, you can stay in the United States for up to 90 days, which cannot be extended. You also cannot change your status to another visa category. Therefore, you should be certain that you will be able to complete your research in the United States within 90 days before using this category. You cannot accept honoraria payments in this status. You can find out more about the visa waiver program on the website of the U.S. Department of State.

Temporary Work in the United States

J-1 Exchange Visitors

Many visiting foreign professors and researchers come to the United States in J-1 Exchange Visitor status. The Exchange Visitor Program is run by the U.S. Department of State and is designed specifically for the purpose of international educational exchange. Immigration law requires people in J status to intend to return to their home countries when they have completed their J-1 exchange program. Therefore, you should use a different visa category (most typically either an H-1B visa or an O-1 visa) if you intend to remain in the United States beyond the terms of the exchange program.

If you are certain that you want to immigrate directly from your home country, another option to consider is an achievement-based petition for U.S. permanent residency (such as EB-1A Aliens of Extraordinary Ability, EB-1B Outstanding Professors or Researchers, or National Interest Waiver (NIW)), together with "concurrent filing" of your I-140 petition and I-485 permanent residency application.

If you intend to enter the United States in J-1 status or to change your status to J-1, you also need to consider the potentially significant limitations. These limitations include:

You have a limited length of time to remain in the United States, generally 36 months for professor or researcher categories. (Extensions for an additional 6 months beyond the 36-month limited have in the past been granted rather commonly, but extensions beyond 42 months are highly unusual.)
It may be difficult to change visa status if you have entered the United States in J-1 status as a professor or researcher category (e.g., F-1 student visa). Also, if you are subject to the J-1 two-year home-residency requirement (and have not obtained a J-1 waiver), you must leave the United States to apply for a new visa category or to apply for U.S. permanent residency status.
You are restricted from beginning a new J program if you have been in the United States for six months or more during the previous twelve months. You would have to wait at least one year from the time your previous program ended.
You may be subject to reside in your home country for at least two years, which may be very difficult to get waived.

If you enter J-1 visa status and are subject to the J-1 two-year home country residence requirement, you cannot change directly to H-visa or L-visa status or apply for U.S. permanent residency status until you have resided in your home country (where you are a citizen or were last a permanent resident) for at least two years after completing your J-1 exchange visitor program in the United States.

You may be subject to the two-year home country residence requirement if:

Your program was financed in whole or in part by the United States or home country government (not including grant funding);
If you are from a country where your specific skills are needed, as determined by the Exchange Visitors Skills list as published by the Department of State;
If you are a medical doctor who come to the United States for advanced medical education or training.

If these restrictions do not apply to you or you are willing to accept the consequences of these restrictions, then a J-1 visa may be appropriate for you. If these restrictions are contrary your plans, you should consider some other visa options before accepting J-1 visa status.

H-1B Specialty Occupation Visa

The H-1B visa is for individuals in a "specialty occupation." A specialty occupation requires the theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation. Researcher and professor positions would clearly meet this standard.

The H-1B category would allow you to remain in the United States, working for your authorized employer, for three years, and may be renewed for up to six years. Further extensions of time may be available beyond the six year deadline if a permanent residency application has been pending for over one year. Your employer must pay at least the prevailing wage for similarly-employed workers in the same geographic region.

Options for Permanent Residency

For permanent residency, Outstanding Researchers and Professors are exempted from the labor certification requirement. To be considered outstanding, a professor or researcher must be internationally recognized as outstanding in his or her specific academic area, have three years of teaching or researching experience in the field, and must be offered a tenure or tenure-track position or comparable research position at a university or other institution. If the employer is a private company rather that a university or educational institution, the department, division, or institute of the private employer must employ at least three persons full time in research activities and have achieved documented accomplishments in an academic field.

You can read more about permanent residency opportunities for Outstanding Researchers and Professors on this site.

Immigration Assistance for Researchers and Professors

Peng & Weber has extensive experience in representing professors and researchers of all levels -- from Ph.D. students to full professors. If you are a professor or researcher (or an entity employing them), please be sure to contact us if you have questions not answered on our website, to request a free evaluation or for a consultation.