Immigration Policy and Procedures for Employment or Sponsorship of Foreign Nationals

8140.1 Purpose and Scope, Definitions, Limitations

  1. The purpose of these Policies and Procedures is to help University employees understand and comply with applicable laws and regulations that pertain to sponsorship of foreign nationals for temporary nonimmigrant employment, exchange visits and international studies in the United States in the following categories: H-1B, H-1B1, E-1, O-1A, TN, J-1, and F-1. These Policies also apply to the sponsorship of employees for lawful permanent residency.
  2. Definitions:

    1. United States Citizenship and Immigration Services (USCIS).  Responsible for the administration of immigration and naturalization adjudication functions and establishing immigration policies and priorities.
       
    2. Nonimmigrant.  A foreign national who is admitted to the United States for a specific temporary period of time.  Clear conditions are attached to their stay.  Within the large variety of nonimmigrant categories the pertinent categories for purposes of this policy are students, temporary workers and trainees, and exchange visitors.
       
    3. Visa.  A legal document issued by a United States Embassy or Consulate which allows the bearer to apply for entry to the U.S. in a certain classification, such as student (F), visitor (B) or temporary worker (H).  A visa does not grant the bearer the right to enter the United States.
       
    4. H-1B.  Visa classification for a temporary worker in a specialty occupation position that requires a minimum of a bachelor’s degree.
       
    5. H-1B1.  Visa classification for specialty occupation workers from Singapore and Chile; similar to H-1B.
       
    6. E-3. Visa classification for Citizens from Australia who come to the United States to work in a specialty occupation- also similar to H-1B.
       
    7. O-1A. Visa classification for persons with extraordinary ability in sciences, arts, education, business, or athletics and motion picture or TV production.
       
    8. TN.  Visa classification for Citizens of Canada or Mexico permitted to work for United States employers in professional occupations pursuant to the North American Free Trade Agreement (NAFTA).
       
    9. J-1.  Visa classification for foreign national exchange visitors including students, faculty, researchers and scholars eligible to conduct duties or engage in learning as established by their status and program sponsor.
       
    10. Certificate of Eligibility for Exchange Visitor (J-1) Status (Form DS-2019).  A Department of State-controlled document required to support an application for an exchange visitor visa (J-1) prepared by the program sponsor, which can only be produced through the Student and Exchange Visitor Information System (SEVIS).
       
    11. F-1.  Visa classification for foreign national students admitted to the United States to study in an approved program.
       
    12. Certificate of Eligibility for (F-1) Student Status (Form I-20). A Department of Homeland Security-controlled document required to support an application for a student visa (F-1 or M-1) prepared by the sponsoring school, which can only be produced through the Student and Exchange Visitor Information System (SEVIS).
       
    13. Lawful Permanent Resident. Any person not a citizen of the United States who is living in the U.S. under legally recognized and lawfully recorded permanent residence as an immigrant.  Also known as “LPR,” “permanent resident alien,” “resident alien permit holder,” and “Green Card holder.”
       
    14. Arrival-Departure Record (Form I-94). The Arrival and Departure Record is the I-94, in either paper or electronic format, issued by a Customs and Border Protection (CBP) officer to foreign visitors entering the United States which specifies the visa classification and the length of stay for the foreign visitor.  As of April 30, 2013, most Arrival and/or Departure records are created electronically upon arrival.
       
    15. Visa Petition.  For purposes of this policy, the legal document that an employer files with USCIS to confer an immigration benefit upon foreign visitors for purposes of employment and/or obtaining permanent residence based upon an offer of employment.
       
    16. Petition for Nonimmigrant Worker (Form I-129).  Immigration form used by employers to file a visa petition on behalf of a nonimmigrant worker to come to the United States temporarily to perform services or labor, or to receive training, as an H-1B, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1 or R-1 nonimmigrant worker.  Petitioners may also use this form to request an extension of stay in or change of status to E-1, E-2, E-3, H-1B1 or TN, or one of the above classifications for a foreign national.
       
    17. Labor Condition Application (ETA Form 9035).  The Labor Condition Application (LCA) is a form employers must file with the United States Department of Labor Employment and Training Administration (ETA) on behalf of employees applying for a nonimmigrant H-1B, H-1B1 (Singapore and Chile) or E-3 (Australia) work visa.
       
    18. Immigrant petition for Alien Workers (Form I-140).  Immigration form filed by employer or alien worker to become a lawful permanent resident of the United States.
       
    19. Application to Register Permanent Residence or Adjust Status (Form I-485).  Immigration for used to change immigration status while inside the United States from temporary to permanent and apply for a green card.
       
    20. Green Card Eligibility Categories based on Employment (EB-1; EB-2; EB-3).
      1. Extraordinary Ability (EB-1):  An individual with extraordinary ability in the sciences, arts, education, business or athletics; outstanding professor or researcher, or multinational manager or executive who meets certain criteria.

      2. Second Preference Immigrant Worker (EB-2):  A member of a profession that requires an advanced degree or exceptional ability in the sciences, arts, or business, or an individual seeking a national interest waiver.

      3. Third Preference Immigrant Worker (EB-3):  A skilled worker whose job requires a minimum of two years training or work experience or a professional whose job requires at least a United States bachelor’s degree or foreign equivalent.

    21. Application for Prevailing Wage Determination (Form 9141).  Filed by employer with United States Department of Labor ETA to obtain prevailing wage which is the average wage paid to workers in the same position and geographic location.
       
    22. Optional Special Recruitment (Special Handling).  A labor certification application filed with the Department of Labor (DOL) filed on behalf of college and university teaching faculty which has a beneficial standard of evaluation and expedited handling requiring payment of an extra fee as compared to the regular "Program Electronic Review Management" (PERM) Labor Certification application. Under the Optional Special Recruitment process, if the foreign national who is a candidate for a teaching position is the best qualified candidate, the employer can proceed with the Labor Certification application even if other minimally qualified U.S. workers apply.
       
    23. Program Electronic Review Management Labor Certification (PERM).  System used by DOL to process permanent labor certification applications. The first step in the EB-2 or EB-3 visa application.
       
    24. Application for Permanent Employment Certification (Form 9089).  Filed by employer with the United States Department of Labor Employment and Training Administration (ETA) to hire employee to work permanently in the United States.
       
    25. Optional Practical Training (OPT).  Period during which undergraduate and graduate students with F-1 status who have completed or have been pursuing their degrees for one academic year are permitted by the United States Citizenship and Immigration Services (USCIS) to work for one year on a student visa towards getting practical training to complement their education.
       
    26. Curricular Practical Training (CPT).  Similar to Optional Practical Training (OPT) but must be completed before F-1 student’s program end date.  One year of full-time CPT eliminates a student’s eligibility for OPT.
       
    27. Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28).  Used to provide eligibility information and authorize individual (usually an attorney), to act on behalf of an application, petition, foreign national, or respondent.
       
    28. Online Nonimmigrant Visa Application (DS-160).  Used for temporary travel to the United Sates and for K fiancé visas.
       
    29. Online Immigrant Visa and Alien Registration Application (DS-260).  Used by person applying for lawful permanent residency from outside the United States- most commonly employment or family-based.
       
    30. Application for Employment Authorization (Form I-765).  Used to request employment authorization and an Employment Authorization Document (EAD) in the United States.
       
    31. Request for Premium Processing (Form I-907).  Employers may use this form to request faster processing of certain employment-based petitions and applications. Form I-129,  Petition for a Nonimmigrant Worker and Form I-140, Immigrant Petition for Alien Worker, have been designated for premium processing.
       
    32. Application to Extend/Change Nonimmigrant Status (Form I-539).  Used to extend, change or reinstate the status of certain nonimmigrants.
       
    33. Application for Travel Document (Form I-131). Used by lawful or conditional permanent residents, individuals in valid refugee or asylee status, or those who hold Advance Parole status to apply to USCIS for reentry to the United States after traveling abroad.
       
  3. These Policies do not apply to foreign national students or researchers who are not employed by or seeking employment with the University and do not apply to immigration filings of a personal nature when University sponsorship is not requested or required.

8140.2 Overview of Immigration Laws, Regualtions, and Policies

Federal immigration laws, regulations, and policies are complex and may change frequently.  Check with the Office of General Counsel for the most current immigration information.

Foreign nationals are generally not permitted to work in the United States without federal government approval.  Under certain circumstances, an employer may elect to sponsor a foreign national for employment authorization.  The University will sponsor foreign nationals when doing so is in the best interests of the University.  Sponsorship is available for individuals who are seeking temporary or permanent authorization to live and work in the United States.  This Policy addresses temporary (“nonimmigrant”) and permanent (“lawful permanent resident”) University-sponsored petitions.

8140.3 General Guidance for Nonimmigrant and Immigrant Petititions

  1. Compliance.  The University’s policy is to comply with all applicable state and federal laws, regulations, and policies.  In the event of a conflict, applicable state and federal laws, regulations, and policies will control over this Policy.  Questions regarding this Policy, or applicable state and federal laws, regulations, and policies should be immediately directed to the Office of General Counsel.
     
  2. Mandatory Review of Filings.  University personnel shall not sign (on behalf of the University) or submit (on behalf of the University) any immigration paperwork that has not been reviewed and approved by personnel in the Office of General Counsel for H-1B and PERM visa filings, or by the University Center for International Education for J-1 and F-1 Practical Training visa filings.  Failure to comply with this paragraph can result in discipline (up to and including dismissal from the University), along with civil and criminal penalties.  On a case-by-case basis, the General Counsel may delegate this authority to the Ohio Attorney General or to outside counsel appointed by the Ohio Attorney General.
     
  3. Signature Authority.  Only University personnel in the rank of Dean, Vice-President (or equivalent), and above, or those designated by the Office of General Counsel, may execute immigration filings on behalf of the University.  This authority may not be delegated.
     
  4. Counsel.  The Office of General Counsel is the sole liaison between University personnel and the University’s outside counsel.  Employees will not interface directly with the University’s outside counsel regarding any immigration-related matters.  Exception: employees may respond to requests from outside counsel regarding the particulars of a petition or application- i.e. - missing document, question, clarification, etc. as long as the Office of General Counsel is copied on any such correspondence.
     
  5. Private Counsel.
     
    1. Prohibited:  Private Counsel for University Filings.  University personnel may not retain private counsel to represent the University with respect to any immigration matter.  The Office of General Counsel will not consider or approve, and University personnel may not execute, any immigration paperwork (including, but not limited to Form G-28, Form I-129, Form I-140, ETA Form 9035, ETA Form 9141, and ETA Form 9089) prepared on behalf of the University by counsel privately retained by an employee or prospective employee.
       
    2. Permitted: Private Counsel for Non-University Sponsored Filings.  A current or prospective employee may retain private counsel for immigration matters unrelated to the University if the University’s sponsorship is neither required nor requested.  Such matters include family member immigration matters, and immigration petitions or applications based on circumstances other than employment (e.g. national interest waiver, extraordinary ability, etc.).
       
  6. Notification of Changes.  All employees/beneficiaries are required to notify Human Resources and the Office of General Counsel of any changes in personal and administrative information, such as home address and telephone number, job titles/duties, salary, work location, and any other information that could materially affect the employee’s pending or approved immigration matters or employability.  It is recommended that the employee/beneficiary and his/her supervisor consult with the Office of General Counsel prior to implementing any employment related changes.
     
  7. Reporting of Violations.  Employees shall immediately report any actual or suspected violation of this Policy and/or applicable law to the Office of General Counsel, the Office of University Compliance, or through the University’s anonymous reporting system.
     
  8. Timelines.  Case preparation and government processing times fluctuate. Hiring units should alert the Office of General Counsel as far in advance as possible of immigration-related employment decisions or proposals.
     
    1. Nonimmigrant visa petitions can take several weeks or months to prepare, and federal government processing may take six months or longer.  Nonimmigrant employment petitions may be filed up to six months prior to the requested start date.
       
    2. Immigrant petitions (for lawful permanent residence) can take six months to several years or more to prepare and process.
          
  9. University retains its right to make exceptions to these guidelines on a case-by-case basis for employees and their family members.  The Office of General Counsel must approve any such exceptions.

8140.4 Nonimmigrant Employment Categories and Sponsorship Limitations

  1. Eligible Categories.  The University has discretion (but not an obligation) to sponsor foreign nationals for nonimmigrant employment when the employment of such individuals is in the best interests of the University.  Employment sponsorship is limited to the following categories: H-1B, H-1B1, E-3, TN, and O-1A.
     
  2. Exchange Visitor and Student Visas.  The University Center for International Education is responsible for processing J-1 (exchange visitor) and F-1 (international student) visas.
     
  3. Current J-1 and F-1 Employees.  Human Resources is the point of contact for individuals already present in the United States on non-Wright State University sponsored J-1 and F-1 visas, who have work authorization, and who do not require University sponsorship.  Any questions should be directed to the Office of General Counsel and/or University Center for International Education.
     
  4. Staff and Faculty Hires.  The Office of General Counsel is the point of contact for potential staff and faculty hires who will seek H-1B, H-1B1, E-3, TN, or O-1A work authorization.

8140.5 Nonimmigrant Employment Sponsorship Case Processing and Costs

  1. University Costs.  The unit seeking to sponsor a temporary nonimmigrant employee is responsible for all associated costs including outside counsel and government filing fees.  These costs may not be offset or paid, in whole or in any part, by the employee/beneficiary.
     
  2. Employee/Beneficiary Costs.  The University will not be responsible for preparing, filing, or paying for the preparation or filing of Form DS-160 (Online Nonimmigrant Visa Application) for the employee/beneficiary, or for any immigration applications for family members, including without limitation:  Form I-765 (Application for Employment Authorization), Form G-28 (Notice of Entry of Appearance as Attorney or Accredited Representative), Form I-907 (Request for Premium Processing Service), Form I-539 (Application to Extend / Change Nonimmigrant Status).
     
  3. Exception for Form I-539.  The employee/beneficiary may request the University to prepare Form I-539 for eligible family members if it will be filed concurrently with a University-sponsored Form I-129 for the employee/beneficiary.  Requests must be directed to the Office of General Counsel.  The employee/beneficiary will be responsible for paying the government filing fee associated with the application.  Form I-539 applications that are prepared and filed separate from the Form I-129 petition will be the sole responsibility of the employee/beneficiary.
     
  4. Premium Processing.  The University’s preference is to request regular processing for all petitions filed with the United States Citizenship and Immigration Services (USCIS).  The Office of General Counsel may approve premium processing when there is a business justification.  The hiring unit will be responsible for all associated costs (attorney and application fees).  If no business justification exists, such as when premium processing is more convenient to the employee/beneficiary, the costs of premium processing will be paid by the employee/beneficiary.  Requests for premium processing must be prepared and filed by outside counsel retained by the Office of General Counsel.

8140.6 Procedure for Nonimmigrant Employment

Step 1      Hiring unit will forward request to initiate new or extensions of nonimmigrant employment application to Dean (academic positions) or Vice-President/Equivalent (non-academic positions).

Step 2      If Dean or Vice-President/Equivalent approves, the request will be forwarded to the Office of General Counsel with a copy to the Provost (academic positions) and/or; VP-Finance and Chief Business Officer (non-academic positions).

Step 3      The Office of General Counsel will collect information and documentation from the hiring/employing unit, perform an initial review, and assign the case to outside counsel.  The Office of General Counsel will act as the sole liaison between the University and outside counsel.

Step 4      Outside Counsel will prepare the petition and forward completed forms to the Office of General Counsel for review.  Personnel from the Office of General Counsel will then meet with the Dean, Vice-President/equivalent for final review and signature. The signed petition is then returned to outside counsel for filing.

Step 5     Outside counsel will send all USCIS communications and documents to the Office of General Counsel who will provide original document to and review conditions of employment with employee/beneficiary, supervisor and Human Resources. Employee/beneficiary and hiring unit must notify the Office of General Counsel and Human Resources of any events that may affect continued eligibility for employment.

Step 6     Employee/beneficiary meets with Human Resources to complete and/or re-verify Form I-9 (Employee Eligibility Verification).

8140.7 Lawful Permanent Residency ("Green Card") Sponsorship

  1. Sponsorship Optional.  The University has discretion to sponsor foreign national employees for lawful permanent residency when doing so is in the University’s best interests.  Sponsorship will be through Labor Certification and/or Form I-140 Immigrant Petition process for categories EB-1 (Outstanding Professor/Researcher), EB-2 (Professionals Holding Advanced Degrees or Persons with Exceptional Ability), and EB-3 (Professionals).
     
  2. Support Authority.  Supervisors in the rank of Vice-President/Dean or above shall have authority to determine, on a case-by-case basis, whether the University will support lawful permanent residency sponsorship for a particular position within the scope of their authority.  The Provost has final approval.
     
  3. No University Support for Self-Filed Petitions.  The University will not sponsor or sign immigrant petitions for a foreign national who uses the self-petition process (e.g. EB-1 Extraordinary Ability, or EB-2 National Interest Waiver).  Exception:  Supervisors in the rank of Dean/Vice-President or above have discretion to sign a letter in support of a self-petition candidate, provided that the draft letter is given to the Office of General Counsel in advance for review, and the Office of General Counsel approves the draft.

8140.8 Lawful Permanent Resident Case Processing and Costs

  1. University Costs.  The hiring unit will be responsible for all costs associated with University-sponsored lawful permanent resident petitions including the preparation and filing of the Labor Certification (including advertisement costs) and the Form I-140 petition.  This includes outside counsel and government filing fees.  These costs may not be passed on to the employee/beneficiary.
     
  2. Employee/Beneficiary Costs.
     
    1. The University’s preference is to request regular processing for all petitions filed with USCIS.  The Office of General Counsel may approve premium processing when there is a business justification.  The hiring unit will be responsible for all associated costs (attorney and filing fees).  If no business justification exists, such as when premium processing is more convenient to the employee/beneficiary, the costs of premium processing will be paid by the employee/beneficiary.  Requests for premium processing must be prepared and filed by outside counsel retained by the Office of General Counsel.
       
    2. The University will not be responsible for costs associated with the adjustment of status or immigrant visa processing phase of the lawful permanent residency process for the employee/beneficiary or for the employee/beneficiary’s family members, including: Form I-485 (Application to Register Permanent Residence or Adjust Status), Form I-765 (Application for Employment Authorization), Form I-131 (Application for Travel Document), Form DS-260 (Immigration Visa Electronic Application), or Form G-28 (Notice of Entry of Appearance of Attorney or Accredited Representative).
       
  3. Requests to initiate a labor certification or Form I-140 petition should be made at least twenty months before the end of the employee/beneficiary’s sixth year on H-1B status.
     
  4. Requests to use Special Handling, a less restrictive labor certification process available to University employees with teaching responsibilities, should be made no later than 12 months after the date of selection of the candidate.
     
  5. Rejected Requests. If the hiring unit Dean or Vice-President/Equivalent, or the Provost does not approve the request, a new request may be initiated after one year.

8140.9 Procedure for Sponsorship of Foreign Nationals for Lawful Permanent Residency

Step 1      The hiring unit will forward the request to initiate an immigrant petition to the Dean (academic positions) or Vice-President/Equivalent (non-academic positions) for approval.

Step 2      If Dean or Vice-President/Equivalent approves, the request will be forwarded to the Provost for approval.

Step 3      If approved, the Provost will forward the request to the Office of General Counsel.

Step 4     The Office of General Counsel will collect information and documentation from the hiring/employing unit, perform an initial review for issues, and assign the case to outside counsel.  The Office of General Counsel will act as the sole liaison between the University and outside counsel.

Step 5      Labor certification and/or Form I-140 documents that require signatures from University personnel will be forwarded by outside counsel to the Office of General Counsel for review.  Personnel from the Office of General Counsel will then meet with the hiring Dean or Vice-President for final review and signature.  The signed petition is returned to outside counsel for filing by the Office of General Counsel.

Step 6      Outside counsel submits documents to the appropriate government agency/s for processing and provides updates to the Office of General Counsel and the employee/beneficiary.

Step 7      When Lawful Permanent Residency is granted, the Employee/beneficiary meets with Human Resources to complete and/or re-verify Form I-9 (Employee Eligibility Verification).

 

Resources:

https://www.foreignlaborcert.doleta.gov/

https://www.uscis.gov/

https://uscis.gov/i-9-central/handbook-employers-m-274