Immigration Essentials for Hiring and Retaining Foreign Faculty and Staff

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1 Immigration Essentials for Hiring and Retaining Foreign Faculty and Staff By David A. M. Ware, attorney at law Immigration Counsel for MSU

2 Who We Are and What We Do ISU s exclusive immigration counsel for several years. We are only firm authorized to file with government agencies on behalf of ISU Law firm handling only immigration matters, and focusing on higher education issues. 32 years experience, five offices across South Central states and Seattle, WA.

3 Why Do You Need to Know? ISU has a number of international faculty and staff. Getting them on board legally and keeping them right with the law is a labor intensive and complicated job. If you know a few basics, you can help.

4 Where Do the Rules Come From? Immigration and Nationality Act of 1952 (McCarran-Walter Act) Code of Federal Regulations: 8 CFR: Immigration Rules 20 CFR: Labor Rules 22 CFR: Dept of State Rules Agency manuals, interpretive memos, and jurisprudence Federal court decisions

5 Agencies and Relevant Functions US Dept of State: Grant, deny, and revoke visas, as well as US passports. US Dept of Labor: Grant, deny and revoke labor condition applications and permanent labor certifications. US Customs and Border Protection: Admit nonimmigrants and protect our borders. US Immigration and Customs Enforcement: Enforce immigration laws in the interior of US. US Citizenship and Immigration Services: Grant immigration benefits to aliens in US.

6 Definitions Citizen: a person fully admitted to our political and economic community. Usually achieved after period of time as Lawful Permanent Resident. Alien : term used in immigration laws for anyone who is not a US citizen. Immigrant or Lawful Permanent Resident: allowed to live and work permanently in US. Nonimmigrant: Lawfully admitted to the U.S. for specific purpose, limited period of time. Granted nonimmigrant status. May be out of status. Others: Live in U.S. with government permission, but are neither nonimmigrants nor immigrants. Undocumented: Enter without inspection or by fraud, or stay has expired.

7 Entry and Nonimmigrant Status Most nonimmigrants must have a visa to enter the US (Canadians are an exception). A visa is a permit to present oneself at a port of entry in order to be admitted to the US for a particular activity for a particular period of time. A visa has a period of validity, and may be for one or more, or multiple entries during that period.

8 This is a Visa

9 Nonimmigrant Status When a nonimmigrant is admitted to the US, until recently, he or she receives a period of nonimmigrant status, which is indicated on a small card stapled into the passport (I 94). Now the information is stored electronically and the document is printed at cbp.gov. If he or she fails to engage in the activities for which admitted, or engages in other activities, then he or she may fall out of status. Out of status means that the person is generally ineligible for immigration benefits and is deportable from the US.

10 This is an Old Style Paper I 94

11 Extension or Change of Status Nonimmigrants in many categories may request an extension of stay or change of status, and generally must be maintaining lawful status in order to do so.

12 Nonimmigrant Classes Denoted by letter and number corresponding to the statute Immigration and Nationality Act. F-1/F-2: Students and Dependents. B-1/B-2: Visitors for Business or Pleasure. H-1B: Temporary Workers in Specialty Occupations. H1B1: Chile/Singapore Free Trade Aliens O-1: Aliens of Extraordinary Ability. J-1: Exchange Visitors: professors, researchers. TN: Treaty NAFTA (Canadians and Mexicans in certain occupations). E 3: Australian Free Trade Aliens

13 Other Common Work Authorized Classes F 1 students may enjoy up to 29 months of optional practical training related to their degree. F s also enjoy a number of other employment options while studying. Spouses of certain visa holders may receive work authorization: E 2, L 2, J 2, etc. TPS Temporary Protected Status. Permission to live and work in the US for nationals of countries experiencing problems. Will have an employment authorization document. Persons in the final stage of permanent residence (adjustment of status) often get a work card.

14 Typical Pattern at ISU New hire is identified. Offer is made. Either person has non employer-specific work card and can begin immediately (usually F 1 OPT), OR Employer specific visa status (typically H1B) must be transferred to ISU.

15 Hiring Issues to Watch Persons in J status or who have enjoyed J status in past: may not be employable or employment may be limited. Persons who are out of status. Persons at the end of their work authorization: there may not be time to get them on board or keep them on board. Persons who are nearing end of fifth year of H1B with another employer. Persons who either do not have a degree or position does not require a degree: work visa may be problematic.

16 Issues to Watch H1B is the typical work visa status used by ISU Petitioning process is multi step and TAKES TIME Labor Condition Application: 10 working days Petitioning process with USCIS: 3-4 months Premium processing $1225: usually ensures 15 processing with USCIS If person is abroad, visa appointment must be scheduled and security checks completed before visa will issue

17 Issues to Watch Travel by faculty/staff in nonimmigrant and other statuses can be problematic and requires extensive documentation Long delays for visa appointments Security checks Visa often needed to enter foreign territory, can take time May need travel permit (advance parole)

18 Permanent Residence The right to live and work permanently in the US for any employer.

19 Routes to Permanent Residence Employment-based Family-based U.S. citizen or permanent resident spouse USC or PR parent; USC child over 21; USC sibling Long waits for all but spouse of USC or parent of USC child over 21. Asylum Diversity Visa Lottery: only apply at Large Investment Domestic Abuse Victims of Trafficking and Serious Crimes Special Programs MAVNI, Military Accessions Vital to the National Interest. See goarmy.com/info/mavni. Removal Proceedings

20 Employment Based Categories EB 1 Extraordinary, Outstanding: no labor certification, no backlogs for anyone EB 2 Persons whose position requires Advanced Degree or Exceptional Ability: backlogs for India, China; labor certification required for most. EB 3 Persons whose position does not require advanced degree or BS plus five yrs exp; labor certification required for all.

21 Employment Based Steps [Labor certification] Employment-based petition (most must be signed by ISU) Adjustment of status = permanent residence = green card Because of per country limitation of employment based visas to about 28,000 per year, backlogs have developed for all countries in EB 3 category, and for persons born in China and India, whose spouse is also born in one of those countries, in EB 2 category. Adjustment of status not possible for persons in backlogged categories until they reach the top of the waiting list.

22 Employment Based Permanent Residence Common Categories Alien of Extraordinary Ability Outstanding Professor or Researcher Regular labor certification: non teaching positions Special handling labor certification: any amount of actual classroom teaching. National Interest Waiver

23 Extraordinary Ability Persons who have risen to the very top of their field of endeavor can self sponsor Need not be sponsored by ISU; however, ISU can sponsor if desired. Only a small percentage approved by USCIS When to utilize: Chinese or Indian subject to backlogs When ISU will not sponsor Must be extremely well qualified

24 Outstanding Professor/Researcher Person of international renown who has at least three years experience teaching/doing research ISU must offer permanent job. If professor must be tenure track If researcher, must be equivalent to tenure track When to utilize: Chinese or Indian subject to backlogs who is well qualified. You may get pressure to sponsor in this category from persons who do not meet regulatory requirements.

25 Regular Labor Certification For positions where there is no actual classroom teaching Established by Federal Government in 1952 Test of labor market designed to protect the US labor market by demonstrating that there is no qualified, willing and able US worker. Foreign national is already in position. Requires FT, permanent job offer ISU must recruit twice in newspaper, on website, job search website, campus placement office, job order with ID, and in house posting for 10 business days Must prove that foreign national is ONLY qualified applicant Not a real hiring process, FN need not resign or make formal application for job. When to utilize: when ISU wishes to sponsor someone who does not teach and who is not extraordinary or outstanding

26 Special Handling Labor Certification For positions where there is any actual classroom teaching. Established by Federal Government in Test of labor market to protect US job market by ensuring that foreign national is best qualified applicant in pool. FN is already in position. Requires FT, permanent job offer. Requires one print or 30 day electronic ad in national professional journal Must be filed with US DOL no later than 18 months from date of offer, not incept date. Several steps required prior to filing, so request needs to be made early: at latest 15 months from offer. If ad is deficient, or 18 month cutoff is missed, the selection process can be repeated. When to utilize: when ISU will sponsor, and there is not some unusual reason for using extraordinary or outstanding category (eg, Indian or Chinese, running out of H time)

27 National Interest Waiver Allows FN to self sponsor if: Engaged in activity in US of intrinsic merit Possible outcomes of activity will have national, not just local impact Person has achievements, impact on field of endeavor When to utilize: When ISU will not sponsor and person is not extraordinary or outstanding This category is EB 2, so Chinese and Indians are subject to backlogs

28 Who Pays and How Much? ISU must pay all attorney s fees and costs associated with any labor certification filed on behalf of an employee, but NOT for any other process. Attorney s fees: Regular : $3000 Special Handling : $2000 to $2500 Ad(s): Regular : $500 to $1000 Special handling : $500 to $750

29 Things to Keep in Mind When Dealing with Foreign National Employees Keep HR and Maria in the loop early and often! ANY change in their employment situation needs to be discussed in advance with HR and Maria: title, duties, leave, location, and so on. For easy sponsorship of faculty: one print ad, national journal, get PR process started at latest 15 months from date of offer. PR sponsorship MUST be started at latest by end of fourth year of H1B with ALL employers. Any PR sponsorship must be cleared by HR and Dean before it can begin. ONLY signatories on govt applications are Deans and Maria.

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