Another Question About the Teacher TN Visa Category

Question: I'm a music teacher at a well-known non-profit community music school in NYC. I'm Canadian on OPT which will expire on July1st, 2008. (I have received a Masters Degree in Music Performance from Manhattan School of Music). I found out about TN visa and would like to know if I am qualified for the 'teacher' on NAFTA list as a teacher at community school.

Answer: Unfortunately, in order to qualify for TN visa status as a Teacher, you need to work at a University, College, or Seminary. A teaching position at a community music school may not qualify.

Your best chance to continue working at this school may be through the H-1B visa category. The H-1B visa category requires that an individual possess a U.S. bachelor’s degree or the equivalent and a position that requires possession of a bachelor’s degree. The one problem with the H-1B visa category is that there is an annual limit on the number of visas issued each year. There are no more H-1B visa numbers left for this fiscal year. So many people applied for an H-1B visa that the numbers ran out on the fist day they were available (April 1, 2007). In addition, USCIS had to utilize a lottery system to determine which petitions would have the chance to apply for an H-1B visa number. Because of this lack of visa numbers, most people have to wait until the next fiscal year for an H-1B visa. Under the 2009 Fiscal Year, individuals may file for an H-1B visa on April 1, 2008 for a start date on October 1, 2008. This then presents a potential gap in your employment authorization from the date your OPT expires and the Oct. 1 start date. There may a chance to avoid this gap though if the community school qualifies for an exemption from the H-1B cap.

There is an exemption to the H-1B cap if the employer is a non-profit entity related to or affiliated with a university or college. Generally, if the school is a non-profit entity and has a student teaching or internship program with a university or college, the school may qualify for the exemption. This means that you may be able to apply for the H-1B at any time and start working as soon as it is approved (2-3 months normal processing / 2 weeks expedited processing for an additional $1,000).

Note: Because you do possess a U.S. Master’s degree, you are eligible for another exemption to the H-1B cap. There are an additional 20,000 H-1B visa numbers set aside only for individuals who possess a U.S. master’s degree. These numbers aren’t available for the current fiscal year, but will be available for the upcoming 2009 fiscal year. So if you’re not able to qualify for the exemption discussed above, you would be able to qualify for one of these extra H-1B visa numbers. This exemption doesn’t offer you the chance to start before Oct. 1, 2008. But it does provide a better chance of securing an H-1B visa number.