The U.S. immigration system allows for many different immigration statuses. Each status carries with it its own set of regulations. As a result, something that is typically allowed or even required in one status may be prohibited in another. An individual in the U.S. can only be in one immigration status. Even if someone has multiple U.S. visas in her or her passport, that person can only be in the U.S. in one status. For more information on the difference between a visa and status, please refer to Visa vs Status. In general, immigration statuses can be classified as follows:
Non-immigrant statuses: the vast majority of immigration statuses are, in fact, non-immigrant statuses. Individuals who come to the U.S. in a non-immigrant status should have the intent, and may be required to document, that they intend to leave the U.S. once they have completed their activity in the U.S. This group of statuses includes, for example, B, F, J & TN status.
Immigrant statuses: people coming to the U.S. in an immigrant status, on the other hand, have to document that they have the intent to reside in the U.S. permanently. Generally, immigrants to the US have a green card.
Dual Intent statuses: there are some hybrid forms of these categories. H-1B status, for example, is technically a non-immigrant status. However, individuals in H-status are not penalized for having the intent to remain in the US. In fact, individuals in H-status might be eligible for certain immigration benefits if they are also the beneficiary of a pending green card application. Having the intent to remain in the U.S. while in H-1B status will not prevent an individual from renewing their H-1B stamp.
For more information on common immigration statuses that permit certain employment and/or academic activities, please refer to the following sections.
- H-1B
H-1B status is available to citizens of all countries. To qualify for H-1B status, the foreign national must intend to come to the U.S. to be employed in a “specialty occupation.” A specialty occupation is an occupation that requires the “theoretical and practical application of a body of highly specialized knowledge; and [the] attainment of a bachelor’s or higher degree in a specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” Specific wage requirements must also be met. Health care workers are subject to several additional requirements.
Maximum Validity
H-1B status can normally be awarded for a total of up to six years, but in increments of no longer than three years. Any time spent abroad during these six years can be reclaimed and added to the total, as long as the absences from the U.S. can be documented. Extensions past the sixth year are possible under limited circumstances, but only if the foreign national is the beneficiary of an employment-based green card application. Once someone has exhausted their time in H-1B status and no extensions based on an underlying green card application are possible, the foreign national must reside abroad for a full year in order to become eligible for a new six year period of H-1B status.
Requesting H-1B Status and Timeline
To request H-1B status for a foreign national, FSIS must file a petition with USCIS. Hiring department submits the standard H-1B/ TN/ E-3 Authorization Form. This form should be received as soon as a decision on sponsoring a foreign national or extending a foreign national’s immigration status has been made.
The earliest that an employer may file an H-1B petition is six months prior to the requested start date. Therefore, and considering the processing times involved, it is recommended that FSIS receive any request six to seven months (or two to three months in the case of extensions/amendments) prior to the requested start date.
The H-1B process application process can take a significant amount of time. FSIS needs approximately four to six weeks to prepare an H-1B petition. Such petitions are prepared on a first-in, first-out basis. Once finalized, the petition will be submitted to USCIS for adjudication. Adjudication times vary, but often exceed several months. (For current processing times, please refer to the USCIS website. (For H-1B processing times, select "I-129" as the form type and "California Service Center" under Field Office or Service Center.)) Petitions filed under Premium Processing are considered by USCIS within 15 days of receipt by USCIS. Note that in the case of transfer, extension or amendment petitions, with some limitations, the employee may start/continue their employment while the petition is pending with USCIS.
With some exceptions, individuals who are currently abroad will also need to apply for an H-1B visa at the consulate or embassy. Visa application timelines depend on a variety of factors, including time of year, nationality or background of the applicant and they also vary from consulate to consulate. Particularly if someone is subjected to administrative processing when applying, a visa application process of four to six weeks is common.
H-1B Sponsorship for Staff Positions
No H-1B sponsorship will be pursued for staff positions in classifications for which the university has determined, as indicated in the career path navigator system, that the minimum requirement is less than a bachelor’s degree (or equivalent) in a specific field related to the position. If no minimum requirement is established for a classification, the International Center will make a determination, on a case-by-case basis, whether H-1B sponsorship may be appropriate for a given position in such a classification. Considerations will include, but are not limited to, the complexity of the position, the standard educational preparation for the position as well as the availability of other classifications.
- F-1 OPT and J-1 Academic Training
Foreign students in F-1 status are generally eligible for a period of Optional Practical Training (OPT) prior to and upon graduation. Recent graduates who did not already use up their OPT or are ineligible for other reasons, will normally be eligible for a period of 12 months of OPT.
Graduates who obtained a degree in a STEM field (Science, Technology, Engineering & Math) are eligible for an additional period of 24 months of OPT for a total of 36 months. Individuals who are eligible for post-completion OPT must apply to USCIS to obtain an Employment Authorization Document (EAD). Once the EAD is received and the start date on the card has been reached, the individual can then work.
Foreign students in J-1 status are generally eligible for a period of 18 months of Academic Training (AT) upon graduation. Individuals who earned a PhD are eligible for an additional period of 18 months of AT. Individuals who are working on the basis of AT do not need an EAD (as is a requirement for individuals on OPT).
Individuals interested in applying for OPT or obtaining AT employment authorization should contact their international student adviser at the institution where they obtained their degree. The UM International Center cannot assist with the AT and OPT applications for non-UM students. Only the adviser at that institution will be able to assist with the required (application) procedures.
- TN Status – Canadian and Mexican Citizens
TN-status is reserved for citizens of Canada and Mexico. As part of the USMCA (United States, Mexico, Canada Agreement), previously the North American Free Trade Agreement or NAFTA, the TN-immigration status was created to allow Canadian and Mexican citizens to enter the U.S. to engage in certain professional activities on a temporary basis. The allowed professional activities are listed in Chapter 16, Appendix 2 of the USMCA. TN status can be awarded in increments of up to three years. Formally, there is no maximum number of renewals. However, all individuals in TN status must have the intent to depart the U.S. Therefore, TN status is not a good long-term immigration solution and is generally not appropriate for tenure-track positions.
There are several benefits to TN status. Specifically, there is no wage requirement and TN status can be obtained without the need to file a formal petition with USCIS. As a result, the process is both faster and cheaper. It is possible to file a petition with USCIS to obtain TN status. In some instances, the application with USCIS may be preferred. Particularly in a situation where a foreign national interested in TN status is already in the U.S. but cannot travel internationally.
TN status is employer and position specific. This means that employees in TN status may only be engaged in the activities described in the TN documentation. Please refer to the Changes, Transfers and Terminations section for more information on how to report any changes to the employment of an individual in TN status.
Requesting TN status and Timeline
Whether a foreign national intends to obtain TN status by entering the U.S. on the basis of the required TN documents or intends to obtain it on the basis of a formal petition with USCIS, the requisite support letter and/or petition must be prepared by FSIS. To request these documents:
Hiring department must submit the standard H-1B/ TN/ E-3 Authorization Form. (In the past, hiring departments often prepared their own TN offer letters. This process has changed and these letters are now issued by FSIS to ensure consistency and compliance and to avoid unnecessary complications.)
The TN-process is significantly faster than the H-1B process, especially when the beneficiary will travel abroad to obtain TN status. How much time will be necessary depends on whether the foreign national will travel to obtain TN status or if a petition will be filed with USCIS.
- Requests for travel letters for Canadian citizens should be received 3-4 weeks prior to the requested start date. Requests for Mexican citizens should be sent to FSIS 5-6 weeks prior to the requested start date to allow for sufficient time to apply for a visa at the consulate.
- FSIS needs approximately a month to prepare a TN petition. Once the petition is submitted, USCIS normally needs about two months to make a decision on the application. However, USCIS does not guarantee this. For a $2,805 government filing fee, it is possible to request Premium Processing (i.e. expedited processing). Petitions filed under Premium Processing are considered by USCIS within 15 business days of receipt by USCIS. Note that in the case of extension or amendment petitions, the 240-day rule applies. For these reasons, it is recommended that FSIS receive any request 3-4 months prior to the requested start date if a petition must be filed with USCIS.
- E-3 – Australian Citizens
Like TN status, E-3 status is based on a Free Trade Agreement and is available to citizens of certain countries only. E-3 status permits Australian citizens to come to the U.S. to work in a “specialty occupation.” A specialty occupation is an occupation that requires the “theoretical and practical application of a body of highly specialized knowledge; and [the] attainment of a bachelor’s or higher degree in a specific specialty (or is equivalent) a s a minimum for entry into the occupation in the United States.” This is the same standard as applies to H-1B status. If a position does not require a bachelor’s degree or higher in a specific field and/or if the occupation does not generally require this, E-3 status is not an option even if the foreign national holds such a degree. As is the case with H-1B status, there is a wage requirement (that is identical to the H-1B wage requirement).
E-3 status can be obtained without the need to file a formal petition with USCIS, unless the foreign national is currently in the U.S. and is unable to travel. As a result, there are no required governmental filing fees and the application process can be significantly faster. (If a petition is filed for an in-country change of status or extension of status, a USCIS filing fee is required.)
E-3 status is employer and position specific. This means that employees in E-3 status may only be engaged in the activities described in the E-3 documentation. Please refer to the Changes, Transfers and Terminations section for more information on how to report any changes to the employment of an individual in E-3 status.
E-3 status can be awarded in increments of up to two years. Formally, there is no maximum period during which someone can hold E-3 status. However, individuals applying for E-3 status have the intent to depart the U.S. upon completion of their E-3 stay. However, E-3 status may not be denied solely on the basis of an approved request for permanent labor certification (PERM) or a filed or approved immigrant visa preference petition (e.g I-140). E-3 visa applicants are not required to maintain a foreign residence. See "What is Needed to Qualify for a Specialty Occupation Visa" for more information.
Requesting E-3 Status and Timeline
Whether a foreign national intends to obtain E-3 status by entering the U.S. on the basis of the required E-3 documents or intends to obtain it on the basis of a formal petition with USCIS, the requisite support documents and/or petition must be prepared by FSIS. To request these documents:
The hiring department must submit the standard H-1B/ TN/ E-3 Authorization Form. The E-3-process is significantly faster than the H-1B process, especially when the beneficiary will travel abroad to obtain E-3 status. How much time will be necessary depends on whether the foreign national will travel to obtain E-3 status or if a petition will be filed with USCIS.
- Requests for E-3 visa application packs – including a new LCA - for should be received 2-3 months prior to the requested start date.
- FSIS needs approximately a month to prepare an E-3 petition. Once the petition is submitted, USCIS normally needs about two months to make a decision on the application. However, USCIS does not guarantee this.
Like individuals in H-1B status, employees in E-3 status may benefit from the 240-day rule.
- O-1
O-1 status is available to foreign nationals who have extraordinary ability (as defined by USCIS -- see O-1A and O-1) in science, art, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. Extraordinary ability is a high level of expertise and indicates that the person is one of a small percentage who has risen to the very top of the field. The foreign national must seek to enter the United States to continue work in the area in which he or she is extraordinary.
Note that, with very limited exceptions, UM will decline to pursue O-1 sponsorship in cases where H-1B sponsorship remains available.
As is the case with H-1B status, O-1 employment is employer and position specific. Employment under the O-1 category is limited to the specific department that sponsored the O-1 and to the employment specified in the I-129 petition. (O-1B petitions filed by an agent may permit multiple paid engagements by different organizations.)
One of the key features and benefits of O-1 status (compared to H-1B status) is that foreign nationals who are subject to the two-year home residency requirement based on previous participation in a J-1 exchange program are eligible for O-1 status but not generally for H-1B status. To obtain O-1 status in this situation, it is likely required that the foreign national travel abroad and obtain an O-1 visa at the U.S. consulate.
An O-1 petition has an initial period of stay of up to 3 years. Subsequent extensions may last for no more than one year at a time. There is no limit to the number of extensions. However, O-1 status is not a long-term immigration solution. If a beneficiary is subject to the two-year home residency requirement based on a previous J-program, steps should be taken to address this in consultation with FSIS.
Requesting O-1 status and Timeline
All O-1 petitions, including extensions, are handled by retained immigration counsel. For an overview of the legal cost associated with an O-1 application, please refer to the fee schedule. The hiring department is liable for paying all legal fees, filing fees and costs associated with the O-1 petition. The foreign national is responsible for paying dependent and visa related fees. All O-1 petitions should be initiated as early as possible, preferably 6-7 months in advance of the requested start date.
To start the O-1 petition process, please submit the Request for Retained Immigration Counsel Form.
- Tourist Status (B-1, B-2, VWP (ESTA))
Individuals in the U.S. in a tourist status may generally engage in temporary business, pleasure, tourism and vacation activities. While they may engage in business activities, they may not work. The following activities are permitted in an academic setting
- Observing and consulting
- Independent research that does not benefit the University
- Negotiations, conferences and seminars
- Medical clerkships for medical school students
Individuals in the U.S. as a tourist may not be employed and may not receive a salary. Under the following circumstances, they may receive an honorarium and associated incidental expenses for eligible academic activities (which can include lecturing, guest teaching or performing in an academic sponsored festival):
- The activities last no longer than 9 days (inclusive of weekends and holidays)
- The honorarium is for services conducted for the benefit of the University
- The individual has not accepted such payments or expenses from more than five institutions over the last six months.
FSIS generally is not involved with the tourist visa application process for foreign nationals. Foreign nationals may request an invitation letter. The purpose of the letter is to assist the applicant in substantiating their invitation to a consular officer. This letter is prepared by the inviting department and should:
- Be written on U-M department letterhead
- Address only the event and/or compensation for the event. Immigration regulations etc should not be addressed.
Citizens of countries that participate in the Visa Waiver Program do not need to apply for a visa to enter the U.S. as a tourist. Instead, they should obtain an online travel authorization through the ESTA system prior to traveling to the U.S. This authorization is normally accepted for a period of two years. Starting 10/1/2022, individuals from a Visa Waiver Program country seeking to enter the U.S. via a land border will also be required to complete the ESTA registration.
Visa application timelines depend on a variety of factors, including time of year, nationality or background of the applicant and they also vary from consulate to consulate. Therefore, visa applicants should apply for their visas as early as possible.
Individuals who enter the U.S. on the basis of a B-visa are normally admitted for a period of six months. People who enter under the Visa Waiver Program are normally admitted for a period of 90 days.
There is no dependent immigration status for individuals coming to the U.S. in a tourist status. Dependents may enter the U.S. on the basis of their own tourist visa or ESTA clearance.
- Timelines
The timelines for obtaining different immigration benefits vary. They depend on the benefit being requested, the time of year, caseload at USCIS as well as the responsiveness of the department and the applicant. If the foreign national must obtain a visa, timelines might be skewed further, especially if the applicant is subjected to a background check. Please refer to each individual immigration status overview for an estimate of the timeline associated with each immigration status.
As a rule of thumb, departments should start the relevant request process as soon as possible, i.e. as soon as a decision has been made on the hire or continued employment of a foreign national. In many cases, the IC can submit an immigration benefit request as early as six months prior to the requested start date. In practice, this means that there is no such thing as submitting a request to the IC too early.
Often the longest period of time in an application process for an immigration benefit is the time USCIS needs to adjudicate a petition. For example, USCIS’s target timeframe for adjudicating H-1B petitions is two months. However, this timeframe is not guaranteed and is often exceeded by significant margins. For current processing times, please refer to the USCIS website. (For H-1B processing times, select "I-129" as the form type and "California Service Center" under Field Office or Service Center.)
Note that completing the green card process may take several years, depending on the specific application process and country of birth of the beneficiary.
- Premium Processing
For most of the common types of applications it is possible to request Premium Processing. Petitions that are filed under Premium Processing are expedited by USCIS and are considered within 15 business days of receipt by USCIS. The governmental filing fee for this service is $2,805 over and above the standard filing fees. This fee must be paid by the employer, unless the request for expedited processing comes from the foreign national and is NOT related to their employment. Note that it is possible to upgrade to Premium Processing after a case has been filed with USCIS.
- Extensions
To obtain an extension of one’s status while at the University of Michigan, the International Center in Ann Arbor must file a petition with USCIS. Alternatively, you may need other support documents to accommodate your travel to renew your status.
To file a petition or prepare the necessary document, our office must receive the standard Process Authorization Form from your department. We should receive this form as early as possible, ideally 6 months prior to the expiration date of your current status. Note that the 240-day rule applies to extension requests for individuals in H-1B, TN and O-1 (but not E-3) status.
If your spouse is in H-4 status and has an approved EAD (based on your green card application), it is particularly import to request an extension of your H-1B status as early as possible; extensions of your spouse’s EAD cannot be approved by USCIS until your H-1B extension has been approved (even though you may continue to work on the basis of the 240-day rule).
- 240-day Rule & H-1B Portability: Transfers and Amendments
When filing a petition for an extension for an individual in E-3, H-1B, H-1B1, O-1 or TN status, the foreign national may continue their employment as soon as the requested start date has been reached or as soon as the petition has been received by USCIS, whichever is later. The beneficiary may work on the basis of this pending petition. The petition does not need to be approved by USCIS first. In the case of extension requests, the employment authorization is limited to 240 days. The 240-day period commences on the day following the expiration of the previous USCIS approval or I-94 expiration period, whichever is earlier. If the petition were to be denied within that 240-day period, the employment authorization would end on that day.
Employees in H-1B status who are transferring from another employer to UM or existing UM employees in H-1B status for whom a new H-1B petition to request a change or amendment of their H-1B status (including petitions that also request an extension) may start in their new position as soon as the requested start date has been reached or as soon as the petition has been received by USCIS, whichever is later. Beneficiaries of these petitions may work until the petition is adjudicated by USCIS regardless of the USCIS processing time. Assuming the petition is approved by USCIS, the new end date as indicated on the formal approval notice will prevail. If USCIS were to deny the petition, the employment authorization would end on that day.