**EMPLOYMENT**

**OF**

**NONCITIZENS**

**IN**

**NON-PERMANENT**

**EXCEPTED SERVICE**

**POSITIONS**

  -----------------------------------------------------------------------
  This document has been updated to reflect current filing fees for
  immigration forms used for petitions and applications.

  -----------------------------------------------------------------------

**As of July 2007**

**Table of Contents**

[EMPLOYMENT OF NONCITIZENS IN NON-PERMANENT POSITIONS IN THE EXCEPTED
SERVICE \-- A Summary
2](#employment-of-noncitizens-in-non-permanent-positions-in-the-excepted-service----a-summaryemployment-of-noncitizens-in-non-permanent-positions-in-the-excepted-service----a-summary)

[Useful Websites 2](#__RefHeading___Toc104790244)

[Listing of Forms 2](#listing-of-forms-listing-of-forms)

[Country List/ Citizenship Information 11](#__RefHeading___Toc104790246)

[Procedures for Employment of Certain J-1\'s
2](#procedures-for-employment-of-certain-j-1sprocedures-for-employment-of-certain-j-1s)

[Procedures for Obtaining a TN Visa \-- Professionals under North
American Free Trade Agreement (NAFTA)
2](#procedures-for-obtaining-a-tn-visa----professionals-under-north-american-free-trade-agreement-nafta)

[TN Visa for Citizens of Canada
2](#tn-visa-for-citizens-of-canadatn-visa-for-citizens-of-canada)

[Renewal (Extension) of TN Visa \-- Canadian Citizens
2](#renewal-extension-of-tn-visa----canadian-citizensrenewal-extension-of-tn-visa----canadian-citizen)

[Procedures for Obtaining an H-1B Visa 2](#__RefHeading___Toc104790252)

[Step 1. State Wage Determination -- Streamlined Procedure
2](#step-1.-state-wage-determination-streamlined-procedure)

[Step 2. Obtain the certification from the U.S. Department of Labor
using Form ETA 9035, Labor Condition Application for H-1B nonimmigrants.
2](#step-2.-obtain-the-certification-from-the-u.s.-department-of-labor-using-form-eta-9035-labor-condition-application-for-h-1b-nonimmigrants.)

[Step 3. Complete Form I-129 for Filing with USCIS
2](#step-3.-complete-form-i-129-for-filing-with-uscis)

[Step 4. Consider Whether Premium Processing is Warranted
2](#step-4.-consider-whether-premium-processing-is-warranted)

[Step 5. Prepare Transmittal Letter to USCIS Requesting Approval of H-1B
Status
2](#h-1b-statusstep-5.-prepare-transmittal-letter-to-uscis-requesting-approval-of-h-1b-status)

[Step 6. Steps after USCIS action.
2](#step-6.-steps-after-uscis-action.-step-6.-steps-after-uscis-action.)

[Filing an Extension of H-1B Status
2](#filing-an-extension-of-h-1b-status)

[Sample Letter Notifying USCIS that Noncitizen is No Longer Employed in
ARS
2](#sample-letter-notifying-uscis-that-noncitizen-is-no-longer-employed-in-arssample-letter-notifying-uscis-that-noncitizen-is-no-longer-employed-in-ars)

[Adjusting Status of a J-1 to an H-1B
2](#adjusting-status-of-a-j-1-to-an-h-1badjusting-status-of-a-j-1-to-an-h-1b)

[Information on Evaluation of Foreign Education
2](#information-on-evaluation-of-foreign-education-information-on-evaluation-of-foreign-education)

#   {#section .unnumbered}

# EMPLOYMENT OF NONCITIZENS IN NON-PERMANENT POSITIONS IN THE EXCEPTED SERVICE \-- A SummaryEMPLOYMENT OF NONCITIZENS IN NON-PERMANENT POSITIONS IN THE EXCEPTED SERVICE \-- A Summary

+----------------------------+-----------------------------------------+
| **SUMMARY**                | Positions in the competitive service    |
|                            | must be filled by U.S. citizens or      |
|                            | nationals (residents of American Samoa  |
|                            | and Swains Island). The rules regarding |
|                            | citizenship are based on Executive      |
|                            | Order and our appropriations act. There |
|                            | are no exceptions in the competitive    |
|                            | service. There are exceptions, however, |
|                            | in the excepted service.                |
|                            |                                         |
|                            | **Note: Clearance from the ARS Office   |
|                            | of Homeland Security is required prior  |
|                            | to the employment and/or visa           |
|                            | sponsorship of a noncitizen.**          |
+----------------------------+-----------------------------------------+
| **EXCEPTION**              | REE agencies may fill certain positions |
|                            | in the excepted service with            |
|                            | noncitizens subject to several          |
|                            | restrictions.                           |
+----------------------------+-----------------------------------------+
| Excepted Service Positions | The positions that can be filled in the |
|                            | U.S. by noncitizens are normally:       |
| **and**                    |                                         |
|                            | \* postdoctoral research associate      |
|                            | positions;                              |
|                            |                                         |
|                            | \* student temporary positions (STEP);  |
|                            | and                                     |
|                            |                                         |
|                            | \* seasonal agricultural positions      |
|                            | (L/A).                                  |
+----------------------------+-----------------------------------------+
| > Specific Nations         | The noncitizens that can be hired       |
|                            | **must** be a citizen of a country on   |
|                            | the Aapproved list.@ These countries    |
|                            | are:                                    |
|                            |                                         |
|                            | \* nations that have treaties with the  |
|                            | United States; or                       |
|                            |                                         |
|                            | \* other nations specifically           |
|                            | authorized by Congress.                 |
+----------------------------+-----------------------------------------+

+----------------------------+-----------------------------------------+
| **NONCITIZENS WITH         | A noncitizen who is a citizen from a    |
| PERMANENT RESIDENT CARD    | country on the \"approved list\"        |
| (Green card)**             | **and** who possesses a permanent       |
|                            | resident card (green card) I-551,       |
|                            | issued by the U.S. Department of        |
|                            | Homeland Security, U.S. Citizenship and |
|                            | Immigration Services (USCIS) (formerly  |
|                            | the Immigration and Naturalization      |
|                            | Service) may be employed in any         |
|                            | excepted service position for which     |
|                            | they qualify. Normal time frames apply. |
+----------------------------+-----------------------------------------+
| **F-1 STUDENTS SEEKING**   | An F-1 Student visa who receives their  |
|                            | degree may be authorized by USCIS to    |
| **PRACTICAL TRAINING AS AN | engage in practical training following  |
| EMPLOYEE OF ARS**          | the completion of their studies. In     |
|                            | order to employ them in ARS, they must  |
| Employment Authorization   | be a citizen from a country on the      |
| Document (I-766) Required  | Aapproved list@ and obtain an           |
|                            | Employment Authorization Document       |
| Employment cannot exceed   | (EAD).                                  |
| duration of visa           |                                         |
|                            | *The following is provided for          |
|                            | information only.*                      |
|                            |                                         |
|                            | F-1 students obtain their own EAD.      |
|                            |                                         |
|                            | The student must complete and have      |
|                            | their foreign student advisor sign an   |
|                            | I- 538, Certification by Designated     |
|                            | School Official, that the employment is |
|                            | for practical training in the student=s |
|                            | field of study. The completed I-538 is  |
|                            | supporting documentation for I-765,     |
|                            | Application for EAD.                    |
|                            |                                         |
|                            | The EAD that is issued for this purpose |
|                            | has limits. The practical training      |
|                            | (work) must be completed within 14      |
|                            | months of the end of the course of      |
|                            | studies and the employment cannot       |
|                            | exceed 12 months.                       |
|                            |                                         |
|                            | Note: any time that the noncitizen has  |
|                            | spent in pre-completion practical       |
|                            | training is deducted from the 12 month  |
|                            | maximum.                                |
|                            |                                         |
|                            | If desired, the supervisor may pursue   |
|                            | obtaining H-1B status if a longer       |
|                            | period of employment is desired.        |
+----------------------------+-----------------------------------------+

+----------------------------+-----------------------------------------+
| **J-1 STUDENTS SEEKING     | **Certain** J-1 Exchange visitors may   |
| PRACTICAL TRAINING AS AN   | be eligible for employment in a postdoc |
| EMPLOYEE OF ARS**          | position. These J-1\'s are those who    |
|                            | are graduating from a U.S. university;  |
| Employment approved by the | are a citizen from a country on the     |
|                            | \"approved list\"; and whose university |
| University Responsible     | responsible officer approves the        |
| Officer                    | employment in writing. (USCIS approval  |
|                            | is NOT required.)                       |
| Employment cannot exceed   |                                         |
| duration of visa.          | These J-1\'s can be employed for up to  |
|                            | an 18- month period. A maximum of 36    |
|                            | months is allowed for practical         |
|                            | training which includes any prior       |
|                            | academic training as an exchange        |
|                            | visitor. For more information, see      |
|                            | Procedures for Employing Certain        |
|                            |                                         |
|                            | J-1\'s.                                 |
+----------------------------+-----------------------------------------+
| **Note on Chinese          | Most Chinese nationals are ineligible   |
| Nationals**                | for employment in the REE agencies**.   |
|                            | Only Chinese nationals subject to the   |
|                            | Chinese Protection Act of 1992 may be   |
|                            | employed.** Look for **Code EC6** as    |
|                            | the first three characters on the       |
|                            | reverse side of their Permanent         |
|                            | Resident Card. Note: These individuals  |
|                            | were in the U.S. on/after June 5, 1989  |
|                            | through April 11, 1990 and not          |
|                            | physically present in the PRC for more  |
|                            | than 90 days between April 11, 1990 and |
|                            | October 9, 1992.                        |
+----------------------------+-----------------------------------------+
| **TN VISAS\-- Canadian     | The TN visa is normally issued to       |
| Citizens**                 | citizens of Canada to be employed in a  |
|                            | professional position as a result of    |
|                            | North American Free Trade Agreement     |
|                            | (NAFTA). TN visas are only issued in    |
|                            | increments of one year but can be       |
|                            | extended on an annual basis.            |
|                            |                                         |
|                            | TN status approval, as documented on    |
|                            | the I-797A, is given for a **specific** |
|                            | employer. Any change in employer        |
|                            | requires a new petition which must be   |
|                            | approved by USCIS **before** work can   |
|                            | begin with the new employer.            |
|                            |                                         |
|                            | Time under a TN visa does not count     |
|                            | toward permanent residency. If married, |
|                            | the spouse cannot work.                 |
|                            |                                         |
|                            | For more information, see Procedures    |
|                            | for Obtaining a TN visa.                |
+----------------------------+-----------------------------------------+

+----------------------------+-----------------------------------------+
| **H-1B Visas**             | The H-1B visa is typically used for     |
|                            | specialty occupations including         |
|                            | postdoctoral positions in ARS.          |
|                            |                                         |
|                            | Note: Government research               |
|                            | organizations, such as ARS, are **not** |
|                            | subject to the yearly cap on the number |
|                            | of H-1B visas issued by USCIS.          |
|                            |                                         |
|                            | Obtaining the H-1B is a lengthy process |
|                            | and can take four months or more. This  |
|                            | timeframe can be streamlined if the     |
|                            | management unit is willing to spend an  |
|                            | additional \$1000 fee for expedited     |
|                            | processing to USCIS. This is in         |
|                            | addition to the basic filing fee of     |
|                            | \$320. **An additional \$500 Fraud      |
|                            | Prevention and Detection fee is         |
|                            | required for all [new]{.underline} H-1B |
|                            | petitions for which ARS is the          |
|                            | employer. The fee does not apply if the |
|                            | request is for an extension of an H-1B  |
|                            | for a current ARS postdoc.**            |
|                            |                                         |
|                            | H-1B approval, as documented on the     |
|                            | I-797A, is given for a **specific**     |
|                            | employer. **Any change in employer      |
|                            | requires a new petition.** However, a   |
|                            | noncitizen that has an H-1B visa with   |
|                            | another employer may begin work with    |
|                            | ARS **after** paperwork has been filed  |
|                            | with USCIS to change the employer to    |
|                            | ARS **and** a notification has been     |
|                            | received from USCIS verifying receipt   |
|                            | of the petition package.                |
|                            |                                         |
|                            | For more information, see Procedures    |
|                            | for Obtaining an H-1B visa.             |
+----------------------------+-----------------------------------------+
| PAYMENT OF FEES            | Fees for TN and H-1B petitions for      |
|                            | potential employees are paid by the     |
|                            | management unit and checks should be    |
|                            | made payable to the **Department of     |
|                            | Homeland Security**. Fees for visas for |
|                            | dependents of the H-1B or TN are paid   |
|                            | by the noncitizen.                      |
+----------------------------+-----------------------------------------+
| COPIES OF VISA DOCUMENTS   | Copies (back and front) of TN and H-1B  |
|                            | visas should be forwarded to the HRD    |
|                            | servicing specialist for official       |
|                            | records.                                |
+----------------------------+-----------------------------------------+

+----------------------------+-----------------------------------------+
| **J-1 EXCHANGE VISITORS    | J-1 Exchange visitors come temporarily  |
| WHO WISH TO ADJUST STATUS  | to the United States as participants in |
| TO H-1B**                  | programs administered by the Department |
|                            | of State. There are numerous categories |
| J-1\'s who need a waiver   | of J-1 visitors.                        |
| of the 2 year home         |                                         |
| residency requirement      | *The following is provided for          |
|                            | information only*.                      |
|                            |                                         |
|                            | J-1, Exchange Visitors who have         |
|                            | exhausted their time in that            |
|                            | nonimmigrant category, often wish to    |
|                            | change their status to H-1B. Many J-1   |
|                            | visas require the noncitizen to return  |
|                            | to their home country for a 2-year      |
|                            | residency upon completion of their J-1  |
|                            | Program.                                |
|                            |                                         |
|                            | **If their J-1 visa is subject to the   |
|                            | 2-year home residency requirement, it   |
|                            | is documented in the lower left corner  |
|                            | of the DS-2019, Certificate of          |
|                            | Eligibility for Exchange Visitors,      |
|                            | \"Subject to 212(E).\"**                |
|                            |                                         |
|                            | If these J-1\'s seek a waiver of their  |
|                            | 2-year home residency requirement, it   |
|                            | is their responsibility. It may take a  |
|                            | **minimum of 6 months and up to one     |
|                            | year**. Additionally, the Department of |
|                            | State may not approve the request. The  |
|                            | H-1B employment paperwork **cannot** be |
|                            | submitted to USCIS until the waiver of  |
|                            | home residency requirement is approved. |
|                            |                                         |
|                            | Note: There are five grounds under      |
|                            | which a J-1 may seek a waiver of their  |
|                            | 2 -year home residency requirement. One |
|                            | is a request by an interested U.S.      |
|                            | Government agency. USDA will **rarely** |
|                            | write a letter of support that a waiver |
|                            | of the 2-year home residency            |
|                            | requirement is in the Apublic interest@ |
|                            | The REE Undersecretary for Research,    |
|                            | Education and Economics is the only     |
|                            | USDA official with this delegation of   |
|                            | authority.                              |
|                            |                                         |
|                            | <http://travel.s                        |
|                            | tate.gov/visa/temp/info/info_1296.html> |
+----------------------------+-----------------------------------------+
| RESIGNATION OR TERMINATION | If the noncitizen resigns from their    |
| OF NONCITIZEN              | position prior to the expiration date   |
|                            | of their appointment, USCIS must be     |
|                            | notified. A sample letter notifying     |
|                            | USCIS is provided in this document.     |
+----------------------------+-----------------------------------------+
| SETTING NOT-TO-EXCEED DATE | Permanent Resident Cards, I-551 are     |
|                            | issued in                               |
|                            |                                         |
|                            | 10-year increments and are renewable.   |
|                            | Appointments of permanent residents can |
|                            | be made or extended without regard to   |
|                            | the expiration date reflected on the    |
|                            | I-551 if other conditions allowing      |
|                            | employment are met.                     |
|                            |                                         |
|                            | For other appointments of noncitizens,  |
|                            | the HRD servicing specialist should     |
|                            | review employment authorizing documents |
|                            | for expiration dates. The appointment=s |
|                            | not-to-exceed date should not reflect a |
|                            | date later than the noncitizen=s        |
|                            | authorization to work typically on the  |
|                            | I-797 or Employment Authorization       |
|                            | Document.                               |
+----------------------------+-----------------------------------------+

[]{#__RefHeading___Toc104790244 .anchor}**Useful Websites**

**Agricultural Research Service, U.S.D.A.,**
[http://www.ars.usda.gov](http://www.ars.usda.gov/)

Listing of companies that perform **foreign education credential
evaluation services**,

<http://www.afm.ars.usda.gov/hrd/jobs/FOREIGN.HTM>

**ARS Office of Homeland Security**,
[[http://www.arsnet.usda.gov/ohs/]{.underline}](http://www.arsnet.usda.gov/ohs/)

Noncitizen Worker Forms and Information including the ARS-230,
Noncitizen Data Sheet

**U.S. Office of Personnel Management,**
[http://www.opm.gov](http://www.opm.gov/)

Federal Employment of Noncitizens,
<http://www.opm.gov/employ/html/Citizen.htm>

**U.S. Citizenship and Immigration Services,**
<http://uscis.gov/graphics/index.htm>

Fee Information for I-129 \-- Click on Immigration Forms Online

Also available on this website are Handbooks (NAFTA, Handbook for
Employers on I-9 Requirements)

**Department of Labor,** [http://www.dol.gov](http://www.dol.gov/)

Foreign Labor Certification, <http://www.foreignlaborcert.doleta.gov/>

The LCA online system is available at:
[www.LCA.doleta.gov](http://www.LCA.doleta.gov/)

**U.S. State Department**, [http://www.state.gov](http://www.state.gov/)

**Embassies**,
[[http://usembassy.state.gov/]{.underline}](http://usembassy.state.gov/)

Information on the Various Types of **Visas**, Extensions of Stay,
Revalidating Visas in the U.S.,

[[http://travel.state.gov/visa/index.html]{.underline}](http://travel.state.gov/visa/index.html)

Information on **J-1 Waivers** of Home Residency Requirement

<http://travel.state.gov/visa/temp/info/info_1296.html>

Information on **TN Visas**

<http://travel.state.gov/visa/tempvisitors_types_temp_nafta.html>

# Listing of Forms Listing of Forms 

DS-156 Department of State form, Nonimmigrant Visa Application

DS-157 Supplemental Nonimmigrant Visa Application

DS-2019 Department of State form that replaced the IAP-66, Certificate
of Eligibility for Exchange Visitors

DS-3035 J-1 Visa Waiver Review Application Instructions

ETA-9035 Labor Condition Application for H-1B Nonimmigrants

IAP-66 Certificate of Eligibility for Exchange Visitors (replaced by
DS-2019)

I-94 Departure Record and Receipt \-- this is the bottom portion of the
I-797A

I-129 Petition for Nonimmigrant Worker

I-539 Application to Extend/Change Nonimmigrant Status (for Family
Members of

Noncitizens whose H-1B or TN Visa is being extended)

I-551 Permanent Resident Card (commonly referred to as a "green card@
also called an Alien Registration Receipt Card**)**

I-766 Employment Authorization Document

I-797A Notice of Action on Petition

Bottom Portion is I-94 \-- Departure Record and Receipt

Authorization to work is given for a specific employer only.

> Note: Approval of the Petition does not guarantee visa issuance to
> noncitizen that is in a foreign country. A copy of the I-797 may be
> used to apply for a new or revalidated visa during the validity period
> of the petition.

I-824 Application for Action on an Approved Application or Petitioner

form to request USCIS to Notify consulate, pre-flight or port of entry
of approval

I-907 Request for Premium Processing Service

Visa Visas are only issued in foreign countries by U.S. consuls \--
permits a person to come to the U.S. port of entry or inspection point
where they can apply to be admitted to the U.S. for the purpose of the
particular visa. USCIS has authority to deny admission.

Petitions Noncitizens in the U.S. Apetition@ USCIS for change in status
\-- they are not really issued visas (see above). If a noncitizen with a
petition pending for an H-1B goes home and then tries to return to the
U.S., then they will need a visa for re-entry.

**Country List/Citizenship Information**

# Updated Country List/ Citizenship Information Positions in the excepted service including ARS postdoctoral research associate positions may be filled either by (1) a citizen or national of the United States; (2) a citizen of a country the U.S. Congress has specifically exempted from the restricting legislation in the annual Treasury, Postal Service and General Government Appropriations Act; or (3) a national of a country currently allied with the United States in the current defense effort. Detailed information on Federal employment of noncitizens is available at: [**http://www.opm.gov/employ/html/non_cit.htm**](http://www.opm.gov/employ/html/non_cit.htm)

**The U.S. Congress has specifically exempted the following from the
appropriations act restrictions:**

Persons who owe permanent allegiance to the United States (for example,
natives of American Samoa and Swains Island);

Aliens from Cuba, Poland, South Vietnam, or countries of the former
Soviet Union (Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan,
Kyrgyzstan, Moldova, Russia, Tajikistan, Turkmenistan, Ukraine,
Uzbekistan) lawfully admitted to the U.S. for permanent residence (have
a Agreen card@);

South Vietnamese, Cambodian, and Laotian refugees paroled into the U.S.
after 1/1/75;

Nationals of the People=s Republic of China (PRC) **who qualify under
the Chinese Student Protection Act of 1992.** Note: These individuals
were in the U.S. on/after

June 5, 1989 through April 11, 1990 and not physically present in the
PRC for more than 90 days between April 11, 1990 and October 9, 1992.
This is reflected by **Code EC6** as the first three characters on the
reverse of their Permanent Resident Card);

Citizens of Ireland, Israel, or the Republic of the Philippines

Also exempt from the appropriations act ban are nationals of countries
currently allied with the United States in a defense effort, (as
determined by the Office of the Assistant Legal Adviser for Treaty
Affairs, Department of State, 202 647-1345). **Listing of countries as
of July 2006.**

+------------+-------------+-------------+-------------+-------------+
| Argentina  | Cuba        | Haiti       | New Zealand | Slovenia    |
|            |             |             |             |             |
| Australia  | Czech Rep.  | Honduras    | Nicaragua   | Spain       |
|            |             |             |             |             |
| Bahamas    | Denmark     | Hungary     | Norway      | Thailand    |
|            |             |             |             |             |
| Belgium    | Dominican   | Iceland     | Panama      | Tobago      |
|            | Rep.        |             |             |             |
| Bolivia    |             | Italy       | Paraguay    | Trinidad    |
|            | Ecuador     |             |             |             |
| Brazil     |             | Japan       | Peru        | Turkey      |
|            | El Salvador |             |             |             |
| Bulgaria   |             | Korea (Rep. | Philippines | United      |
|            | Estonia     | of)         |             | Kingdom\*   |
| Canada     |             |             | Poland      |             |
|            | France      | Latvia      |             | Uruguay     |
| Chile      |             |             | Portugal    |             |
|            | Germany     | Lithuania   |             | Venezuela   |
| Colombia   |             |             | Romania     |             |
|            | Greece      | Luxembourg  |             |             |
| Costa Rica |             |             | Slovak      |             |
|            | Guatemala   | Netherlands | Republic    |             |
+------------+-------------+-------------+-------------+-------------+

*\* Great Britain (England, Scotland, and Wales) and Northern Ireland.*

**Note:** Immigration law bans employment of noncitizens unless lawfully
admitted for permanent residence or are otherwise authorized to be
employed.

# Procedures for Employment of Certain J-1\'sProcedures for Employment of Certain J-1\'s

**Summary of Steps**

**ARS Scientist/Mentor**

Scientist identifies potential J-1 for postdoc position ensuring that
country of citizenship restrictions are met.

Obtains the resume, OF-306, original transcript, list of publications,
presentations, honors/awards, and one page dissertation from the
candidate.

Discusses ARS position with university representative.

Discusses employment of the J-1 with servicing HR specialist.

Requests copy of the DS-2019 from the university and letter approving
ARS as employer for practical training.

Submits SF-52, AD-332, job description, DS-2019, and the candidate\'s
documentation to servicing HRD Branch following Area procedures.

**HRD Servicing Specialist**

Ensures that all paperwork is complete.

Issues tentative offer of employment pending background check/security
investigation.

Sends formal offer of employment after receipt of satisfactory
background check/security investigation.

**Local Responsible Officer of the Sponsoring University**

The academic dean or advisor and the local responsible officer (for the
J-1 Program) must approve the employment of the J-1 in writing naming
ARS, USDA as the employer. The J-1\'s employment must commence within 30
days after completion of their Ph.D. The J-1 may change employers if
approved by the local responsible officer for the J-1 program.

The academic dean or advisor and the local responsible officer for the
J-1 Program must:

ensure that the employment relates to the student=s major field of study
and be an integral or critical part of the academic program of the
exchange visitor student;

periodically evaluate the effectiveness and appropriateness of the
academic training;

maintain the records on the amounts of academic training that the
student has used; and

coordinate travel outside the U.S.

For postdoctoral training, a maximum of 36 months is allowed which would
also include any prior academic training as an exchange visitor. The J-1
Responsible Officer maintains the records on the amounts of academic
training that the student has used.

**Summary of Responsibilities of ARS Scientists**

Mentors of postdocs must work with the university contacts to:

discuss the duties and responsibilities of the postdoc position with
university officials to ensure that the position fulfills program
requirements;

provide evaluations of progress to the sponsoring university, when
requested;

be aware of travel restrictions outside the U.S. for J-1\'s; and

understand that many J-1\'s must return to their home country for two
years after their period of study and academic training is completed.
USDA rarely supports waivers of home residency requirement as an
\"Interested Government Agency.\"

**Summary of HRD Responsibilities**

Review all paperwork submitted, ensure that security clearance
requirements have been addressed, and issue a formal offer of
employment.

In the processing of appointment papers, social security should **not**
be withheld. (Use special employee code "62" when inputting the
Personnel Action.) The Tax Treaty would determine if Federal Taxes
should be withheld.

# Procedures for Obtaining a TN Visa \-- Professionals under North American Free Trade Agreement (NAFTA) 

## TN Visa for Citizens of CanadaTN Visa for Citizens of Canada

In comparison with the H-1B process, it is a quick mechanism for
employing a Canadian citizen because the TN Visa can be issued
immediately. TN Visas are made for one year increments and can be
extended in one year increments.

Procedure

1\. The Canadian citizen makes application with an immigration officer
at a:

U.S. Class A Port of Entry;

U.S. airport handling international traffic; or

U.S. pre-clearance/pre-flight station.

2\. The following documentation must be presented to obtain a TN Visa:

Proof of Canadian citizenship;

Fee of \$50 (U.S. check or currency); (This fee is typically paid by the
management unit)

Entrance on Duty letter signed by the servicing HRD specialist;

> Copy of position description;

Evidence of college degree related to the position (original and one
copy); and

Valid passport\--passport must be kept valid during entire stay.

**Family member information**: If spouse and/or children are
accompanying or joining the TN professional, each will need proof of
citizenship. A certificate of marriage is required if bringing spouse.
The fees for dependents are paid by the TN professional. There is a fee
of \$6 per dependent to obtain I-94, Nonimmigrant Arrival/Departure
Record. Dependents of the TN noncitizen, are considered a TD (Trade
Dependent). TD dependents are not authorized to work.

If dependents are following the TN, they will have to present copies of
the TN=s entry documents, proof of citizenship an evidence of a legal
relationship (i.e., marriage certificate, long form birth certificate)
which entitles them to be properly classified as dependents (TD) of a TN
professional.

**Request for change/additions of U.S. employers**. A Canadian citizen
may change or add employers while in the U.S. through the filing of Form
I-129 at the Vermont Service Center. However, employment with a
different employer is not authorized and cannot begin until USCIS
approval of the petition is received.

## Renewal (Extension) of TN Visa \-- Canadian CitizensRenewal (Extension) of TN Visa \-- Canadian Citizen

For Canadian citizens admitted as a NAFTA Professionals, extension of
stay may be granted up to one year as follows:

1.  If the applicant is in the United States, an I-129 can be filed with
    the the Vermont Service Center, U.S. Citizenship and Immigration
    Services; or

2.  The applicant may apply at a port of entry using the same
    application and documentation procedures as required for their
    initial entry.

Renewals (extensions) of TNs can be filed using Form I-129 and the
Nonimmigrant Classification Based on Free Trade Agreement Supplement to
Form I-129 (Page 6 of the I-129 form) and sent to the Vermont Service
Center of USCIS. The fee is \$320. **No Department of Labor
certification requirements apply.** The applicant must be in the U.S. at
the time of filing the renewal (extension) request. An extension may be
granted for up to 1 year. At the present time, there is no specified
upper limit on the number of years a citizen of Canada may remain in the
U.S. in TN classification, as there is with most of the other
nonimmigrant classifications.

**Family member information**: **To extend the stay of TD dependents
while remaining in the U.S. use Form I-539. The fee to accompany Form
I-539 is \$300 and is paid by the TN professional.**

If the TD dependent(s) are applying for an extension of stay at the same
time as the TN professional, the TD dependent(s) shall file Form I-539
along with the Form I-129 for the TN professional.

If the TD dependents are not applying for an extension of stay at the
same time that the TN professional is applying for an extension, or is
applying for a change of nonimmigrant status to TD after the TN
nonimmigrant obtains status, the alien must present a copy of the TN=s
Form

I-94, Nonimmigrant Arrival/Departure Record, to establish that the TN is
maintaining valid nonimmigrant status.

**Selected notes on Completion of Form I-129, if used in filing for the
renewal (extension) of a TN Canadian.**

Part 2 - Information about this Petition page 1 of the I-129

1\. TN

2\. Check block b

3\. Provide previous petition receipt number

4\. Leave Blank

5\. Check Block e.

6\. Number of workers - 1

Part 5 - Basic Information about the proposed employment and employer
page 3 of the I-129

4\. NAICS Code is 54170

9\. Type of Petitioner: check AOrganization@

10\. Type of business: Agricultural Research- Federal government

Year established: 1862

Current number of employees: \~8000

Gross Annual Income: AN/A@

Net Annual Income: AN/A@

Form I-129 Supplement FT - Nonimmigrant Classification Based on Free
Trade Agreement Supplement to Form I-129 page 6 of the I-129

Follow instructions on form.

Documentation to include with Form I-129 for a Canadian citizen includes
a copy of their passport, copies of I-94, Nonimmigrant Arrival/Departure
Record. A sample letter to USCIS follows:

**Sample Letter to USCIS to Renew (Extend) a TN Visa \-- Canadian
Citizen**

U.S. Department of Homeland Security\
U.S. Citizenship and Immigration Services\
Vermont Service Center\
75 Lower Welden St.\
Saint Albans, Vermont 05479

To Whom It May Concern:

This is to request a renewal of the TN visa of Dr. (Name). Their
admission number , expires (date).

Dr. began employment with the Agricultural Research Service, (Research
Unit Name), (City, State) on (date). He/she holds a full-time (title of
position), GS-(series)-(grade), research associate position through
(date). His/her current salary is \$ , per annum.

**Sample paragraph**. Dr. \>s position required completion of a Ph.D. in
(scientific discipline). The duties assigned to this position include
initiating, planning and conducting investigations toward understanding
how (tailor to the position \-- sample follows \--

fungal biocontrol agents or its products induce gene expression in plant
tissues.) Knowledges and skills required include knowledge of
(scientific disciplines \-- sample follows \-- plant physiology, plant
pathology, biochemistry, and plant/fungal interactions.)
Responsibilities include independently selecting established methods and
procedures, developing novel techniques and approaches as needed,
conducting assigned research, and preparing reports and manuscripts.

A copy of Dr. \>S I-94 form is attached, along with a copy of his/her
initial employment offer letter, educational documentation, and a check
for \$185 to cover the renewal cost for the TN visa.

If you have any questions, please contact me on xxx xxx-xxxx or by
e-mail at .

Sincerely,

Name

Title

Enclosures

[]{#__RefHeading___Toc104790252 .anchor}**Procedures for Obtaining an
H-1B Visa**

**Preliminary StepsPreliminary Steps**

**Obtain the following documents from the supervisor**:

> \* SF-52;
>
> \* AD-332;
>
> \* Position Description;
>
> \* Letter from the supervisor stating why they wish to hire the
> noncitizen.

**Obtain the following documents from the applicant and make copies of
the application materials for location records and USCIS:**

> \* Curriculum Vitae, OF-612, Optional Application for Federal
> Employment, or Resume completed in accordance with OF-510, Applying
> for a Federal Job;
>
> Ensure that country of citizenship is reflected in the CV or
> application materials.
>
> \* OF-306;
>
> \* Original transcript;
>
> (NOTE: Graduates of foreign universities must have their transcript
> translated into English **and** certified that the education is
> equivalent to an accredited U.S. college or university.)
>
> \* One page abstract of Ph.D. dissertation;
>
> \* List of publications; presentations, honors, and awards;
>
> \* If noncitizen was previously on a J-1 visa, copies of **all**
> IAP-66 and/or DS-2019 forms (**front and back**);

**Send to the servicing HRD specialist:**

> \* SF-52, AD-332 and Position Description
>
> \* Original transcript, application materials and OF-306
>
> \* If noncitizen was previously on a J-1 visa, copies of **all**
> IAP-66 and/or DS-2019 forms (**front and back**);

**Obtain the following from the servicing HRD specialist:**

> \* Concurrence from the servicing HRD specialist that the noncitizen
> meets all qualification requirements.
>
> \* A copy of the EOD Letter documenting the appointment pending
> receipt of H-1B status.

**Procedures for Obtaining an H-1B Visa (continued)**

**The LAO then follows the steps below to obtain the H-1B:**

## Step 1. State Wage Determination -- Streamlined Procedure

Utilize the "Wage Library" on the Department of Labor Website.

> Go to: <http://www.foreignlaborcert.doleta.gov/>

On the left side of the screen under Quick Links:

Click on the Online Wage Library

> Click on OES Search Wizard

Under Select a State: Pick the state where the noncitizen will be
working

Under County or Town: Select the county where the noncitizen will be
working

From the Occupational list (drop down choices): pick the occupation

Engineering codes begin with 17 (17-2021 for Agricultural Engineer)

Biological and Physical Science codes begin with 19 (19-1022 for
Microbiologists)

Select a date: current year

Select a Data Source: ACWIA -- Higher Education Industry Database
(includes government research organizations)

Then hit the search button

The results on the online wage search will then be shown.

At the bottom of the form, select format record for printing.

> Print, sign and maintain the information as back-up to the ETA 9035
> form.

## Step 2. Obtain the certification from the U.S. Department of Labor using Form ETA 9035, Labor Condition Application for H-1B nonimmigrants.

> The form can be found on the Department of Labor website. Go to:
> <http://www.foreignlaborcert.doleta.gov/>
>
> **Online submission is recommended. Become a registered user, if
> desired.**
>
> **Some notes on completion of the form:**
>
> Employer Business Identification: EIN Number is 72-0564834
>
> Section D. Occupation Code:
>
> LCA Code is 013 for Agricultural Engineers
>
> LCA Code is 022 for Chemists
>
> LCA Code is 040 for Agricultural Scientists
>
> LCA Code is 041 for Biological Scientists
>
> Section E.
>
> Prevailing wage, enter the level 2 wage from ACWIA -- Education
> Database
>
> Block 4, Wage Source, select "other"
>
> Block 5, Year Source Published -- enter current year
>
> Block 6, Cite "DOL Online Wage Library"
>
> Section F-1. Chose Block A -- Employer is not H-1B dependent or
> willful violator
>
> Once DOL grants certification, print and sign the Form ETA 9035E. This
> form is filed with the I-129 to USCIS.

**\* Post a copy of Form ETA 9035 at the location for 10 days.** If
applicable, provide the bargaining unit representative with a copy.

## Step 3. Complete Form I-129 for Filing with USCIS

Step 3. Complete Forms I-129 and I-129W for Filing with USCIS

**\* Upon receipt of the approved Labor Condition Application, DOL Form
ETA 9035, complete form I-129, Petition for a Nonimmigrant Worker,**

> Form I-129, Parts 1-6, and Supplement H, must be completed prior to
> submitting to USCIS.
>
> Below are instructions for some of the more ambiguous entries on the
> form.
>
> **[Part 1 - Information about the employer filling this
> petition]{.underline}** page 1 of the I-129
>
> Block 2. USDA, Agricultural Research Service
>
> Federal Employer Identification \# 72-0564834
>
> **[Part 2 - Information about this Petition]{.underline}** page 1 of
> the I-129
>
> Block 1. Requested Nonimmigrant classification H-1B1
>
> Block 2. Basis for Classification
>
> Check **block a** if this noncitizen will be on a **new H-1B visa**
>
> Check **block b** if this is an **extension** of a current noncitizen
> ARS employee already on an H-1B visa.
>
> Check **block e** if the noncitizen is already on an H-1B visa and we
> are changing the employer to ARS
>
> Block 5. Requested Action
>
> Check block Aa@ for new employment with ARS where the noncitizen is
> not currently in the U.S.; or
>
> Check block Ab@ for new employment with ARS, and the noncitizen is in
> the U.S. on another type of visa; or
>
> Check block Ac@ for extension of employment with ARS of a noncitizen
> in
>
> H-1-B status.
>
> Check block "e" for **extension** of a TN (Canadian) employee already
> in the U.S.
>
> Check block "f" for a **change in status** for a new TN petition
> (Canadian) and the person is already in the U.S.
>
> **[Part 3 - Information about the person(s) for whom you are filing
> for]{.underline}** page 2 of the I-129
>
> The majority of this section is self-explanatory.
>
> If the noncitizen does not have a social security number [leave this
> section blank]{.underline} (do not use the temporary number that HRD
> provides if needed for purposes of the SF-52 completion or payment of
> recruitment incentives). NOTE: If the noncitizen is not in the United
> States at the time the H-1B paperwork is prepared, they should apply
> for a SSN as soon as possible after arrival.

AA#" is the alien number and can be left blank if they do not have one.

**[Part 4 - Processing Information]{.underline}** pages 2-3 of the I-129

> The majority of the questions in Part 4 are self explanatory. You will
> have to obtain some of the information from the noncitizen.
>
> 1\. If the noncitizen is **not currently in the U.S.**, check that you
> want the consulate office notified of petition approval. Provide the
> address of the consulate office in the country where they reside
> closest to their place of residence. For U.S. Embassies in other
> Countries, <http://usembassy.state.gov/> This is also where the
> noncitizen will obtain the visa. Note: The consulate may require that
> the noncitizen bring the entire form, I-797, Notice of Action,
> approved by USCIS before issuing the travel visa.
>
> 5\. **For initial appointments only**, check yes if family members
> will accompany the noncitizen and include the number of family members
> that will accompany the noncitizen. Also, provide additional
> information on family members by completing Attachment 1. **(NOTE:
> Extensions of family members are filed using form I-539.)**
>
> **[Part 5 - Basic Information about the proposed employment and
> employer]{.underline}** page 3 of the I-129

4\. NAICS Code - 541710

> 9\. Type of Petitioner: check AOrganization@
>
> 10\. Type of business: Agricultural Research- Federal government
>
> 11\. Year established: 1862
>
> 12\. Current number of employees: \~8000
>
> 13\. Gross Annual Income: AN/A@
>
> 14\. Net Annual Income: AN/A@

**[Part 6 - Signature]{.underline}** page 4 of the I-129

As the preparer of the form and representative of the agency, it is
suggested that the LAO sign the form on behalf of the Location.

**[Complete H Classification Supplement to Form I-129]{.underline}**
page 7 of the I-129

Complete all appropriate Sections

> 4\. H-1B1 Specialty occupation.
>
> **Statement for H-1B specialty occupations and U.S. Department of
> Defense projects** says, "As an authorized official of the employer, I
> certify that the employer will be liable for the reasonable costs of
> return transportation.@ Guidance from Financial Management Division as
> of 5-18-2005, is that we may sign and date this section.

**[Complete H-1B Data Collection and Filing Fee Exemption
Supplement]{.underline}** page 10 of the

I-129

> Some special notes on completion of this section of the form follows:

**Part A. General Information**

> 1\. Employer Information
>
> Block a. check Ano@ that ARS is not a dependent employer

Block b. check Ano@ that the petitioner is not a willful violator.

Block c, check Ayes@ that the beneficiary is an exempt H-1B nonimmigrant

> Block c 2. Check "yes" beneficiary has a master's or higher degree

2\. Beneficiary's (Noncitizen's) information

7\. LCA Codes

> LCA Code is 013 for Agricultural Engineers
>
> LCA Code is 022 for Chemists
>
> LCA Code is 040 for Agricultural Scientists
>
> LCA Code is 041 for Biological Scientists
>
> 8\. NAICS Code is 541710.
>
> **Part B. Fee Exemption and/or Determination**
>
> Answer all the questions in this part.

Block 3, check Ayes@

> **Part C. Numerical Limitation Exemption Information**

Answer all questions in this part.

Block 3, check "yes"

Certification. The LAO should signed and date this supplement.

**Attachment - 1 to Form I-129** page 16 of the I-129

Complete this section for family member information if this is an
**initial** H-1B petition. (Note: **extensions** of family members are
filed using I-539 and fee are paid

by the noncitizen.)

**Filing Fees charged by USCIS.**

> Information on the fees charged by USCIS for processing costs can be
> found on the Internet at <http://www.uscis.gov/forms>. Always check
> the website prior to case submission as the fee change often.
>
> **Form I-129**
>
> As of July 30, 2007, the fee for processing an I-129 is \$320 - check
> payable to Department of Homeland Security.
>
> A separate \$500 Fraud Prevention and Detection Fee is required for
> all new H-1B petitions for which ARS is the employer. The fee also
> applies if the noncitizen worked for a different employer on an H-1B.
> It does not apply if it an extension of a current ARS noncitizen
> already on an H-1B. It must be paid by **separate check** made out to
> the Department of Homeland Security.

## Step 4. Consider Whether Premium Processing is Warranted

> For an extra \$1000 fee, USCIS guarantees that they will issue either
> an approval notice, a notice of intent to deny, a request for evidence
> or a notice of investigation for fraud or misrepresentation within 15
> calendar days. If USCIS fails to meet its 15-calendar-day guarantee,
> it will refund the \$1,000 but will continue to process the petition
> expeditiously.
>
> **The \$1,000 premium processing fee must be paid with a separate
> check or money order** \-- it cannot be combined with the regular
> petition fee or the Fraud Prevention and Detection Fee. Form I-907
> (Request for Premium Processing Service) can be downloaded from the
> USCIS Web site <http://www.uscis.gov/forms>
>
> **Be sure to print the instructions on the USCIS website that
> discusses the form to ensure the most current directions and mailings
> instructions.**
>
> In addition to expedited processing, employers that participate in the
> program may use a dedicated phone number and e-mail address to check
> on the status of their petition or ask any other questions concerning
> their petition. The dedicated phone number, e-mail and mailing address
> for each USCIS Service Center can be found in the instructions for
> Form I-907.

**INFORMATION FOR CHECK WRITERS**: **The DHS Tax identification number
is 53-0199943**

## Step 5. Prepare Transmittal Letter to USCIS Requesting Approval of 

## H-1B StatusStep 5. Prepare Transmittal Letter to USCIS Requesting Approval of H-1B Status

Sample Letter Follows:

U.S. Citizenship and Immigration Services

(use appropriate regional office address found in form I-129)

To Whom It May Concern:

The United States Department of Agriculture, Agricultural Research
Service, submits **an original and one copy** of the following
documentation in support of a H-1B petition for (NAME) as a nonimmigrant
worker.

1\. Form I-129, APetition for a Nonimmigrant Worker@, including
Supplement H.

> (Note: If applicable, include Attachment 1 to include family member
> information.)

2\. Fee(s) included in this petition are: (Note: all are paid by the
management unit)

Basic Filing Fee(s) for I-129: check \# , dated , for \$320.

> (If applicable) Fraud Prevention and Detection Fee of \$500 (separate
> check - required for new H-1B petitions where ARS is the employer)
>
> (If applicable) Filing Fee for I-907, Request for Premium Processing
> Service: check \# , dated , for \$\_\_\_\_\_. (separate check)
>
> **(Note: All checks are made payable to the Department of Homeland
> Security**.)

3\. Entrance on Duty Letter.

4\. Approved Labor Condition Application Form, ETA-9035.

5\. Copies of application materials. This includes college transcripts
(if foreign degrees, include proof of U.S. equivalency and the
transcript translated into English, if necessary), resume, copy of
abstract of thesis, and listing of publications.

6\. Letter from the supervisor stating why they wish to hire the
noncitizen.

7\. If applicable, for noncitizens in the U.S. in another visa status,
copies of previous I-94, Departure Record and Receipts are attached.

If you have any questions concerning this matter, please do not hesitate
to call me

at (xxx) xxx-xxxx.

Sincerely,

Name

Title

Enclosures

## Step 6. Steps after USCIS action. Step 6. Steps after USCIS action.

If the request is rejected, the entire package will be returned with an
explanation.

If approved, USCIS will return Form-797, Notice of Action.

1\. Copy the front and back of the I-797 and send a copy to the
servicing HRD specialist. Maintain the original for location files.

2\. If the **noncitizen is in the U.S.**, detach the lower tear-off
portion of Form I-797 and give to the noncitizen.

If the **noncitizen is outside the U.S.** and must apply for a travel
visa from the consulate with the Department of State, it is our
understanding that the noncitizen must present the entire, ORIGINAL
I-797 to the CONSULAR OFFICER at the time of their interview and the
letter from ARS offering employment.

3\. The supervisor and the servicing HRD specialist coordinate the
reporting date. The servicing HRD specialist contacts the noncitizen to
confirm entrance on duty date. Dates of employment cannot exceed the
date reflected on the visa.

# Filing an Extension of H-1B Status

If the supervisor determines that an extension of the noncitizen=s
appointment is needed, it is suggested that **4 months** lead time be
allowed before the expiration date of the appointment and status. NOTE:
Do not send the paperwork to USCIS more than 90 days prior to the
expiration of the current visa.

To initiate an extension, an SF-52 and a letter from the supervisor
describing circumstances that warrant extension is forwarded to the
servicing Branch, HRD.

After concurrence by the HRD servicing specialist, the LAO again
completes the documents listed in obtaining the H-1 B visa.

Information on filing extensions of stay, can be found on pages 12-13 of
the I-129 Instructions.

**Below are some specific instructions that relate to filing an
extension of employment with ARS.**

[Part 2 - Information about this Petition]{.underline}.

Block 1. Requested Nonimmigrant classification H-1B1

Block 2. Check "b", Continuation of previously approved employment
without change with the same employer

Block 3, give the previous petition receipt number from the I-797,
Notice of Action

Block 5, Requested Action, check block Ac@ for extension of employment
with ARS of a noncitizen in H-1-B status.

**Note on Family members**: H-4 Dependents must use Form I-539,
Application to Extend/Change Nonimmigrant Status, to apply for an
extension of their stay in the United States. The I-539 should be filed
with the I-129 paperwork filed for the H-1B employee; or with evidence
that the employee=s I-129 extension is pending; or with a copy of the
employee=s I-94 or approval notice showing that he/she has already been
granted status to the period requested in the application. As of July
30, 2007, the fee to accompany Form I-539 is \$300 and is paid by the
H-1B employee.

Note: If ARS has filed for an extension of H-1B status with USCIS prior
to the expiration of the noncitizen=s H-1B visa, the noncitizen can
continue to be employed for up to 240 days after expiration of their
H-1B status while waiting for the decision. Their appointment in ARS
could be extended up to 240 days. If the request for extension of their
H-1B is denied, the noncitizen=s appointment **must be terminated
immediately.**

**Filing an Extension of H-1B Status (continued)**

**Sample Transmittal Letter to USCIS Requesting Approval to Extend an
H-1B Status follows on the next page.**

U.S. Citizenship and Immigration Services

(use appropriate regional office address)

To Whom It May Concern:

The United States Department of Agriculture, Agricultural Research
Service submits **an original and one copy** of the following
documentation in support of an extension of H-1B status for **(NAME)**
as a nonimmigrant worker.

1\. Form I-129, APetition for a Nonimmigrant Worker@, including
Supplement H.

2\. Filing Fee for I-129: check \# , dated , for \$\_\_\_\_\_. (Note:
this fee is paid by

the management unit). Check made payable to the Department of Homeland
Security.

3\. Approved Labor Condition Application Form, ETA-9035.

4\. Letter from the supervisor describing the need for the continuing
employment of the noncitizen.

5\. Copies of the Form I-94, Departure Record.

6\. If applicable, I-539, Application to Extend/Change Nonimmigrant
Status for Family

> Members (fee paid by noncitizen)

If you have any questions concerning this matter, please do not hesitate
to call me at ( ) xxx-xxxx.

Sincerely,

Name

Title

Enclosures

# Sample Letter Notifying USCIS that Noncitizen is No Longer Employed in ARSSample Letter Notifying USCIS that Noncitizen is No Longer Employed in ARS

U.S. Citizenship and Immigration Services

(Use appropriate regional office address)

To Whom It May Concern:

This is to inform you that the following worker(s), who was (were)
employed by our agency under (TN or H-1B) status, has (have) resigned
from our agency prior to the expiration of their appointment and are no
longer employed by the United States Department of Agriculture,
Agricultural Research Service (ARS).

[Name]{.underline} [Petition \#]{.underline} [Last day of employment
with ARS]{.underline}

If you have any questions regarding this matter please call me at (xxx)
xxx-xxxx.

Sincerely,

Name

Title

# Adjusting Status of a J-1 to an H-1BAdjusting Status of a J-1 to an H-1B

If the supervisor has identified a noncitizen with J-1 status and has
determined that this is the candidate he/she wants to hire, it is
possible to convert the J-1 to an H-1B. However, of all the possible
visas by which a foreign national can come to the U.S. to work or study,
none is as problematic as the J-1 or Aexchange visitor@ visa.

Some J-1 visas require the noncitizen to return to their home country
for a 2-year residency upon completion of their J-1 program. This
requirement is typically documented in the lower left corner of the
DS-2019, Certificate of Eligibility, in the section APreliminary
endorsement of consular or immigration officer regarding Section 212
(e). If a person is subject to the

2-year home residency requirement, there should be an annotation on the
visa which says ASubject to 212(E)@; if they are not subject to the
2-year home residency requirement, it will read ANot Subject to 212(E).@

It is the noncitizen=s responsibility to file any necessary paperwork
for a J-1 waiver of the

2-year home residency requirements. The waiver must be requested **and
approved** prior to submitting a request to USCIS to convert these J-l
holders to H-1B status. **The process of applying for a waiver of the
home residence requirement is lengthy (taking from 6 months to up to one
year), is sometimes quite complicated, and in the end may not be
successful.**

Once an application for a waiver has been submitted, it is not
recommended that the noncitizen also submit a request to extend their
J-1 status. If the extension is approved first, then their request for
waiver of the home residency may be canceled.

Information on waivers of the 2-year home country residency requirement
may be found at:

[http://travel.state.gov/visa/temp/info/info_1296.html]{.underline}

<https://j1visawaiverrecommendation.state.gov/>

There are five waiver application bases of the 2-year home-country
residency requirement. The bases are:

1\. ANo objection@ from the home government;

2\. Request by an interested (U.S.) government agency. The
Undersecretary for Research,

Education, and Economics, USDA is the only authorized official who may
sign these requests for ARS).
<http://travel.state.gov/visa/temp/info/info_1293.html>

3\. Fear of persecution upon return to the home country due to race,
religion, or political opinion;

4\. Exceptional hardship;

5\. Request by a designate State Department of Health or its equivalent
(medical doctors only).

Should the noncitizen receive a waiver of their 2-year home residency
requirement, the process for obtaining the H-1B as previously described
is followed. The transmittal letter to USCIS is slightly different and
documentation must also include copies of all the DS-2019 Forms. A
sample transmittal letter follows:

**Adjusting Status of a J-1 to an H-1B**

**Letter to USCIS Requesting Approval to Convert Noncitizen Currently on
J-1 Visa to an H-1B Status**

U.S. Citizenship and Immigration Services

(use appropriate regional office address)

To Whom It May Concern:

The United States Department of Agriculture, Agricultural Research
Service submits **an original and one copy** of the following
documentation in support of a H-1B petition for (NAME) as a nonimmigrant
worker.

1\. Form I-129, APetition for a Nonimmigrant Worker@, including
Supplement H.

2\. Filing Fees for I-129: check \# , dated , for \$\_\_\_\_\_\_.
**(Note: This fee is paid by check by the management unit).**

Fraud Prevention and Detection Fee, \$500, separate check by the
management unit made payable to the Department of Homeland Security

3\. (If applicable) Filing Fee for I-907, Request for Premium Processing
Service: check \# , dated , for \$\_\_\_\_\_. **(Note: This fee is paid
by separate check by the management unit).**

4\. Entrance on Duty Letter

5\. Approved Labor Condition Application Form, ETA-9035.

6\. Copies of application materials. This includes college transcripts
(if foreign degrees, proof of U.S. equivalency, and the transcript
translated into English, if necessary), resume, copy of abstract of
thesis, and listing of publications.

7\. Copy of Nonimmigrant Arrival/Departure Record, Form I-94.

8\. Copy of Certificate of Eligibility for Exchange Visitor (J-1)
Status, Form DS-2019

> (Note: copies of **all** DS-2019 and/or IAP-66 forms \-- front and
> back)

If you have any questions concerning this matter, please do not hesitate
to call me at

\(xxx\) xxx-xxxx.

Sincerely,

Name

Title

Enclosures

# Information on Evaluation of Foreign Education Information on Evaluation of Foreign Education 

Applicants may qualify for many Federal jobs based on academic study
completed in accredited colleges or universities. This means education
completed in a college or university accredited by a national or
regional accrediting association in the United States.

Education completed in foreign colleges or universities may be used to
meet Federal job requirements for positions if the applicant can show
that foreign education is comparable to education received in accredited
educational institutions in the United States. It is the responsibility
of the applicant to provide such evidence when applying for Federal
jobs.

Federal Job Information/Testing Centers have information about
qualification requirements for all Federal positions, and information
about the requirements for specific jobs is usually given in job
opportunity bulletins for these jobs. An applicant who completed his or
her education in a foreign school should carefully review education
requirements before applying for a Federal job.

For Federal employment, education received in foreign colleges or
universities will only be considered acceptable based on meeting the
criteria in the Office of Personnel Management, Operating Manual,
Qualification Standards for General Schedule Positions, Section II,
General Policies and Instructions, Section 4, Educational and Training
Provisions or Requirements, Other Education, page II-11. Evidence that
is acceptable and commonly used includes the following:

\(1\) The specific courses have been accepted for advanced credit by an
accredited U.S. college or university because they would be creditable
if the student were to further his or her education at that institution.

\(2\) An accredited U.S. state university reports the institution as one
whose transcript is given full value, or full value is given in subject
areas applicable to curricula at the State university.

\(3\) The education completed outside the U.S. has been submitted to a
private organization that specializes in interpretation of foreign
educational credentials and such education has been deemed at least
equivalent to that gained in conventional U.S. education programs.

**Note:** Before asking an applicant to provide foreign education
equivalency documentation for some institutions that are located outside
the United States such as Puerto Rico, U.S. Virgin Islands, Guam,
American Samoa, Republic of Palau, Federated States of Micronesia,
Commonwealth of the Northern Mariana Islands, and Republic of the
Marshall Islands, it is suggested that supervisors confer with their
servicing human resources specialist. The HR specialist can determine if
the institution is accredited by an organization recognized by the
Secretary, U.S. Department of Education by linking to
<http://www.ed.gov/admins/finaid/accred/index.html> for accreditation
information. Click on "#5 Regional Institutional Accrediting Agencies"
which will take you to
<http://www.ed.gov/admins/finaid/accred/accreditation_pg7.html#RegionalInstitutional>.

This web site lists the recognized accrediting organizations and the
geographic locations for which they are responsible. Click on the web
address of the organization responsible for type/geographic location of
the institution. Each web site is different, however, all should have a
way to search/locate member institutions (for example you may need to
click on \"members\" or \"members and candidates\", \"directory\", and
\"search\")

There are a number of private organizations that evaluate foreign
educational credentials for employment and other purposes. All operate
on a fee based on the extent of the education to be evaluated. The
following website contains a listing of companies that perform this
function. <http://www.afm.ars.usda.gov/hrd/jobs/FOREIGN.HTM>