Demystifying Immigration: - University of Alaska Anchorage

Report
Charting the Course for Recruiting, Hiring, and
Maintaining a Foreign National Workforce
Presented by
John C. Bhend
Senior Consultant
Human Resources
Office of Academic Affairs
907.786.4673
[email protected]
Some Preliminary Vocabulary…
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Citizen
Foreign National
Immigrant = “Green Card” = Lawful Permanent
Resident
Nonimmigrant = Temporary/Finite Stay
U.S. Department of Homeland Security (DHS) =
U.S. Immigration & Customs Enforcement (USICE)
U.S. Citizenship and Immigration Services (USCIS)
U.S. Department of Labor (DOL)
U.S. Department of State (DOS)
Customs and Border Protection (CBP)
Some Points to Consider
during this Presentation…
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Visa = admission ticket (no guarantee of
admission)
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I-94 card or a Employment Authorization
Document (EAD) = defines period of stay and
status in the United States during that stay
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“Knowing is half the battle”
Recruiting Issues –
Application and Interview

What CAN I ask:
 Are you legally authorized for unrestricted
employment in the United States?
 If the answer is “yes” the person is authorized to
work in the US indefinitely and no further
questions should be asked.
 If the applicant answers “no” to question one, the
employer may ask the following:
 What visa status do you presently possess and will
you require sponsorship for employment?
Recruiting Issues –
Application and Interview

You Cannot Ask:
– What kind of work authorization do you have?
– How did you obtain citizenship/ green card?
– What is your home country?
– Do you have work authorization for an
unlimited period?
Does the Candidate Need
Sponsorship?
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What Status Does the Candidate Have?
– US Citizen or Lawful Permanent Resident
– Employment Authorization Document (EAD)
 Might be limited, can it be renewed?
 Can start work
– Non – Immigrant Work Visa
 Typically employer specific
– Visitor Status
 Can not work – but can receive expenses and
honorarium
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Need Work Status approved before starting
Nonimmigrant Status
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Limited in Duration of Stay
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Limited in Activities Allowed
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Available for hiring the foreign scholar or
faculty member, or administrator/nonfaculty position
F-1 Optional Practical Training
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Optional Practical Training (“OPT”):
 Must be directly related to the major area of
study;
 Student must obtain authorization from the
International Students Office through SEVIS and
then apply to the U.S. Citizenship and
Immigration Services (“USCIS”) for an
Employment Authorization Document (“EAD”) –
student cannot begin employment until the EAD
has been issued by the USCIS

Must have completed one academic year
of study
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OPT can be used during school year or after
completion of the course of study:
 If during the school year, the student is limited to 20 hours
per week of employment (40 hours per week during regular
school vacations);
 If post-completion of full course of study, then OPT must be
completed within 14 months following the completion of the
course of study.

Limited to 12 months of total OPT time whether used
during, after or both (note – part-time OPT
employment during the school year is deducted from
the 12 months at only a ½ rate, i.e., 2 days of parttime would be deducted from the overall period as
only 1 day of OPT).
J-1 Exchange Visitor Employment

Work-authorized categories for UAA include professors,
research scholars, and short-term scholars.
 Professor: an individual primarily teaching, lecturing, observing, or
consulting at post-secondary accredited educational institutions,
museums, libraries, or similar types of institutions. A professor may also
conduct research, unless disallowed by the sponsor.
 Research scholar: an individual primarily conducting research,
observing, or consulting in connection with a research project at
research institutions, corporate research facilities, museums, libraries,
post-secondary accredited educational institutions, or similar types of
institutions. The research scholar may also teach or lecture, unless
disallowed by the sponsor
 Short term scholar: a professor, research scholar, specialist, or a
person with similar education or accomplishments coming to the United
States on a short-term visit for the purpose of lecturing, observing,
consulting, training, or demonstrating special skills at the research
institutions, museums, libraries, post-secondary accredited educational
institutions, or similar types of institutions. Short-term scholars may also
participate in collaborative research.
J-1 Visitor cont.
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An individual may be selected for participation in the
Exchange Visitor Program as a professor or research
scholar subject to the following conditions:
 The participant shall not be a candidate for tenure track
position; and
 The participant has not been physically present in the
United States as a nonimmigrant pursuant to the
provisions of 8 U.S.C. 1101(a)(15)(J) (in J status) for all or
part of the twelve month period immediately preceding the
date of program commencement set forth on his or her
Form DS-2019, unless:
J-1 Visitor cont.
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(A) The participant is transferring to the sponsor's
program as provided in Sec. 514.42; or
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(B) The participant's presence in the United States was
of less than six months duration; or
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(C) The participant's presence in the United States was
pursuant to a Short-term scholar exchange activity as
authorized by Sec. 514.21.
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Prior to reapplying for entry into the United States, J-1
scholars are often required by law to return to their
home country for two years to use the skills and
knowledge they have gained.
H-1B Classification – the
Immigration “Staple” for Faculty
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“Specialty Occupation” = Professional
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Position must require a bachelor’s degree
in specific specialty
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Foreign national must possess minimum
credentials to perform services in specialty,
i.e., must have minimum bachelor’s degree
or equivalent (foreign degree, experience
or combination)
The H-1B Process
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Once university or college’s offer is accepted by a
qualified foreign national:
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Labor condition application (LCA) is prepared
LCA is filed with the DOL and posted on worksite
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Upon receipt of certified LCA, the H-1B petition and
supporting documentation is filed with USCIS
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Premium Processing Program $1,000 –
guarantees” 15 day processing time
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Non-Premium = 4-6 months processing time
H-1B University Policy
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The recruitment will be open for no shorter than 30 days.
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All postings will be in UAKjobs as an external recruitment
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30 days internet advertisement (highedjobs.com)
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For all faculty positions, print advertisement should be in one
national publication or journal applicable to the professional
position. It should also refer applicants to submit their
resume through the UAKjobs website. The most common
publication for faculty members is Chronicle of Higher
Education.

The department will cover all costs (attorney fees,
application fee, fraud fee, and expedited processing fee).
H-1B Basics
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H-1B status is employer and job-specific
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H-1B status valid for initial 3-year period and may be
extended for additional 3 years
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Honoraria for Professors/Scholars: Giving speeches,
lectures, etc. in locations other than the employer’s
location is not prohibited for an H-1B employee in
academia, and is quite frequent. However the H-1B
worker must not be paid or derive a material gain,
except for transportation and reasonable living
expenses and is limited in the number he/she is
allowed to obtain.
H-1B LCA Requirements
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Employer must maintain a Public Inspection File
 LCA and Cover Page
 Actual Wage Memo
 Prevailing Wage Information
 Summary of Benefits provided

Employer must retain LCA documents for one year
beyond last date any:
 H-1Bs employed under LCA
 Date LCA expires
 Date LCA withdrawn
H-1B Labor Condition Application
(LCA) Requirements
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Goal of the LCA is to protect all workers
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Must be posted at the place of employment or
the principal place of business
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Employer must attest to four basic items:
 Pay the prevailing wage (note: separate university
scale)
 Provide similar working conditions
 No strike or lockout
 Notice has been provided
H-1B Portability: Hiring a Foreign
National already in H-1B status
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H-1B worker may begin employment
with new employer as soon as the H-1B
petition is filed.
O-1 Extraordinary Ability
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Intended only for the top few in the field of expertise in the
world
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Must have:
 Major award or prize (Nobel, Fields, etc.); OR
 Documentation from 3 of 8 categories specified in the Regulations;
OR
 Other “comparable evidence”
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The job need not require extraordinary ability
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Initial O-1 period is 3 years, annual extensions indefinitely
thereafter in one year increments (foreign national must
continue to demonstrate extraordinary ability and
achievements)
TN Classification
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Available only to Mexican and Canadian Nationals
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Specific list of occupations in NAFTA
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One year initial admission – extensions can be
granted in one-year increments
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Biggest obstacles: Demonstrating non-immigrant
intent and “fitting” within defined occupations
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Processing:
 For Canadians: Can apply directly at Class A POE/PFI
 For Mexicans: Can apply directly at the US Embassy
E-3 Classification
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No USCIS petition required; apply for visa directly
with Consulate but limited to Australian citizens
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All visa issuing US consulates in Australia accept
applications
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If in the US in an eligible status, can apply to change
status to E-3 through the USCIS
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Admitted for two years
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No maximum stay for E-3s
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Limited to 10,500 per year
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Spouse can get authorization to work
E-3 Requirements
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Job offer from US employer (E-3 support
letter)
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Must be filling a position in the US that
requires attainment of a bachelor’s degree
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Must have foreign equivalent of a US
bachelor’s degree related to field of work
(experience equivalency allowed)
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Certified Labor Condition Application (LCA)
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All other normal visa application documents
Evidence that stay in US will be temporary
I-9 Requirements
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Basic I-9 Requirements
 MUST complete for every new hire after
November 8, 1986
 Hire = actual commencement of employment
 May not knowingly hire or continue to employ a
person who is not authorized to work in the U.S.
 “Knowingly” = actual or constructive knowledge
 Employee = individual who provides services or
labor for wages or other remuneration
(charitable distinction)
Preparing the I-9
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Section 1 –
Employee Information
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Section 2 –
Employee Documents
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Section 3 –
Re-verification
By When Must the I-9 Be
Completed?
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Section 1 is to be completed by the
employee at the time employment begins
(Day 1).
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Section 2 must be completed by the
employer by the 3rd day of employment.
(By the 1st day of employment if the
individual will work 3 or fewer days.)
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Section 3 must be completed by the
expiration date of the foreign national’s
work permission.
Practical Hints — Section 1
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Employee Authorization Verification v. NonDiscrimination
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Do Not Ask For Any Documents To
Substantiate Section 1
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Do Not Ask For Any Particular Documents
For Section 2 (from list A or B and C)
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Review Documents Produced For Section
2 Against Section 1 And Give Employee A
Chance To Correct Section 1
Practical Hints — Section 2
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Accept Any Document Specified in List A,
List B or List C, Provided That It Appears
To Be Genuine And To Relate To The
Employee
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Make Sure Documents Proffered Are On
List A, List B or List C
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Do Not Ask Employee To Complete Form I9 Prior To Offer of Employment
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Do Not Consider Work Authorization Date
In Making Hiring Decision
Practical Hints — Section 2
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Do Not Ask For INS/USCIS Document
Confirming Expiry Date of Work
Authorization
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Instructions Suggest Document Filing
Receipts = 90 Day Grace Period --- Be
Careful USCIS Position Has Changed
I-9 Penalties
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Paperwork violations
 $110 to $1,100 per I-9 for errors or omissions
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Knowing employment of unauthorized
workers:
 First: $275 -$2,200
 Second: $2,200 - $5,500
 Third: $3,300 - $11,000
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Pattern or practice:
 $3,300 per and/or imprisoned for up to six
months in addition to civil penalties
Basic I-9 Issues/Violations
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Citizenship status discrimination
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National origin discrimination
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Document abuse
 May not ask for more or different documents
 May not specify which documents are
acceptable
 May not refuse to accept valid documents
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Retaliation
IMMIGRANT VISAS
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Available for hiring the foreign scholar,
faculty member, and essential professional
staff for a permanent basis
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University of Alaska policy; only for tenure
track faculty and IT staff
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Permanent Residency
 Can stay in the US for as long as one wants
 Can work for anyone
 Not US citizens – Cannot vote; could lose status
for extended absence from US or committing
certain offences
“Green Cards” through
Employment
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First Preference (EB-1)
 Extraordinary Ability, Outstanding Researchers and
Professors, and Managerial or Executive Transferees
 No Labor Certification requirement
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Second Preference (EB-2)
 Exceptional ability, National Interest Waiver (NIW), and
advanced degree professionals
 No Labor Certification for NIW & Exceptional ability
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Third Preference (EB-3)
 Professional, skilled, and unskilled workers
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Why do the Preference categories matter?
First Preference:
Extraordinary Ability
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Extraordinary Ability Foreign Nationals:
 Similar to O-1 nonimmigrant classification
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Must have:
 Major award or prize (Nobel, Fields, etc.); OR
 Documentation from 3 of 10 categories specified
in the Regulations; OR
 Other “comparable evidence”
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Documentation extensive/Scrutiny High
Outstanding Researchers
and Professors
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Must demonstrate 3 years teaching or
research experience in academic area
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Must have permanent job offer in a
tenured or tenure-track position or for a
term of indefinite duration
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Must demonstrate at least 2 of 6
categories
Second Preference:
National Interest Waiver
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Waiver of Job-Offer Requirement (no
labor certification)
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“National Interest” Test:
 Foreign national will work in area of “substantial
intrinsic merit”
 Foreign national’s proposed activity “national in
scope”
 “Foreign national will serve the national interest
to a substantially greater degree than an
available U.S. worker having the same minimum
qualifications”
Schedule A, Group II Labor
Certification Exemption
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Exceptional ability in the sciences or
art including university professors:
 Widespread acclaim and international
recognition in the field
 Foreign national has exceptional ability and
job requires exceptional ability
 2 of 7 Regulatory criteria
 Filing of Labor Certification documents
directly with the USCIS
Exceptional Ability & Advanced
Degree Professionals

Foreign Nationals of “Exceptional Ability”
in the Sciences, Arts or Business
 Individual will substantially benefit the U.S.
economy, cultural, or educational interests
 Requires the filing of a labor certification with
USCIS and
 3 of 6 Regulatory criteria

Advanced degree professionals
 Must hold a master degree, its equivalent or
higher (or bachelor’s + 5 years experience)
 Must obtain a labor certification
Third Preference:
Require a Labor Certification
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Labor Certification is designed to test the
U.S. labor market to ensure that no
minimally qualified U.S. workers are ready,
willing, and able to fill the position

The Labor Certification is employer,
position, and geographic specific
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Minimum Requirements = minimum
education, training, experience, and special
requirements needed to adequately
complete the core duties of the position
Recruitment

Timing of Recruitment
 Must be less than 180 days old at time of
filing.
 Recruitment does not have to cover entire
180 day period.
 Must have 30 day “Quiet” period before
filing.

Be careful as mistake in counting
days will cause a denial.
Staff Recruitment

Required Recruitment
 30 day Job Order with the State Workforce
Agency
 2 Sunday Newspaper Ads or 1 Professional
Journal
 Consecutive Sundays
 Notice of Job Availability (Paper Posting at
worksite)
 Minimum of ten consecutive business days. Be
aware of legal holidays, weekends don’t count
even if business is open.
Staff Recruitment cont.

Alternative Forms – Must have 3 out of 10
 Job fairs
 Job search web site (higheredjobs.com)
 Employer’s web site (UAKjobs)
 On-campus recruiting
 Trade or professional organizations
 Private employment firms
 Employee referral program, if it includes identifiable
incentives
 A notice of the job opening at a campus placement office, if
the job requires a degree but no experience
 Local and ethnic newspapers
 Radio and television advertisements
Staff Recruitment cont.
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Prevailing Wage
 Must obtain prevailing wage from state
where job will be located.
 Prevailing Wage must be valid during
recruitment period.
 Prevailing Wage does not have to be “valid”
when you file.
 Offered wage must meet prevailing wage or
higher.
Faculty Recruitment

For faculty and research positions at UAA
 The recruitment will be open for no shorter than 30
days.
 Set up the job in UAKjobs as an external recruitment
 30 days internet advertisement (highedjobs.com)
 For all faculty positions, print advertisement should
be in one national publication or journal applicable to
the professional position. It should refer applicants to
submit their resume through the UAKjobs website.
The most common publication for faculty members is
Chronicle of Higher Education
Faculty Recruitment cont.

The department must post the position in the
employee’s work place for 10 full business days, in
the same location as other government mandated
postings. The department must note on the
posting the date it was posted and the date it was
taken down.
Special Handling
Labor Certifications

Limited labor certification process

Available only for foreign national college and
university teachers

Must show that no equally qualified U.S. worker
available (note: normal labor certification – must
show that no minimally qualified U.S. worker is
available)

The employer may recruit for university faculty under
the basic PERM labor certification process or elect to
have the case handled as a special handling matter

Must be filed within 18 months of competitive
recruitment process
What triggers an audit?

Foreign language requirement.

Experience requirement that exceeds
the Specific Vocational Preparation
(SVP) code for the position.

Unduly restrictive requirements.

Failure to check the appropriate boxes.
“Green Card” Practice Pointers

Must initiate the “green card” process (e.g., labor certification) at
least one-year prior to the end of the foreign national’s six-year
maximum stay in H-1B status to be eligible for additional stay in
H-1B status.

It is preferable for the “green card” process to be initiated within
the first 18 months from the date of hire.

If a college or university is considering the foreign national
candidate for a tenure-track employment, then the “green card”
must be part of that conversation and must be considered in the
maintenance of employment process

Caveat: once a foreign national has the “green card,” then he or
she is eligible for “open-market” employment
Thank
You

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