EB-1 - Human Resource Services

Report
U.S. Permanent Residence Overview
Presented by Jan Keiser
Immigration Compliance Specialist
International Programs – Global Services Department (IP-GS)
For the Campus Hiring Units
March 27, 2013
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Disclaimer
 Information presented here is not final or conclusive
as they are subject to change any time.
 Updates and feedbacks are constantly incorporated.
 Consult with appropriate personnel related to a
specific situation for a specific individual.
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U.S. Permanent Resident
 PR/LPR/Green Card holder
 Non U.S. citizen, entitled to live and work in the U.S.
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permanently for any job and live anywhere in the U.S.
except those that require U.S. citizenship.
Evidenced by a “green card.”
Issued for ten years, renewable.
Naturalization after having continuously resided in the
U.S. for five consecutive years.
Naturalization after having been continuously resided
in the U.S. for 3 consecutive year for those married for
at least 3 years to a U.S. citizen.
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Green Card/Permanent Resident Card
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Ways to Get PR
 Family based
 Diversity lottery
 Investors
 Asylum/Refugees
 Employment based
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Employment-Based Preferences
 EB-1
 EB-1a/EB-11 Extraordinary Ability
 E-1b/EB-12 Outstanding Professor or Researcher
 EB-2
 EB-21 Advanced degree holders
 College teachers, Special Handling LC procedures
 Others, standard LC procedures
 EB-22 Exceptional ability in the sciences, arts and business
 EB-3 Professionals
 EB-4 Certain special immigrants
 EB-5 Investors
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WSU PR Sponsorship Policy (1)
 Only employment - based, employer - sponsored PR
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Position must be permanent, full-time
EB-2 teaching faculty has priority in processing
EB-1b Outstanding Researcher
Others, case by case
Cannot use a private outside attorney for EB categories to
petition on behalf of WSU.
 Do not sponsor PR for the following positions including but
not limited to:
 Temporary positions, e.g. post-docs
 Generally civil service or AP positions
 Student employee positions, e.g. graduate student assistants
 Do not sponsor PR for others not based on employment at
WSU
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WSU PR Sponsorship Policy (2)
EB-2 Teaching Faculty
 Tenure-track/tenured permanent full-time position
 Job title: Assistant/Associate/Full Professor
 Has priority in processing
EB-1 Outstanding Researcher
 Permanent research position
 Job title: Assistant/Associate/Full Research Professor
 In H-1B status with WSU for at least 2 years or
 In H-1B status with any US employers for at least 3 years
 Approved by the Office of Vice President of Research
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EB-2 College/University Teachers
1.
2.
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5.
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Complete competitive full-swing bona fide recruitment
steps for an open position.
File Labor Certification (LC) application utilizing special
handling procedures.
File I-140, Immigration Petition for Alien Worker after LC
is certified by DOL.
File I-485, Application to Register Permanent Residence
or Adjust Status to obtain the actual green card.
After receiving the actual green card, the beneficiary
must update IP-GS, hiring unit, HRS and other
appropriate agencies.
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EB Job Advertisement
 Purpose: to test the job market to protect U.S.
workers, not to help a U.S. employer to find a specific
type of employee like a regular search.
 Job advertisement contents:
1.
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5.
6.
Name of the employer, job location
Job title, nature of the job (permanent full-time)
Job duties, TEACHING, actual classroom teaching
Requirements, preferred?
Method to contact the employer, how to apply
EEO
 Job advertisement plan: national search
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EB Recruitment Documents Retention
 Placed in a national academic journal, either in print
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or web-based
Tear-sheets of job ad, when-duration, and where
(national academic journal)
Final recruitment report
Statement of qualifications of the selected foreign
national candidate
Part of the pre-filling requirements to file LC
LC audit
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Interviewing Questions Related to
Employment Eligibility
 The Immigration Reform and Control Act of 1986 (IRCA)
protects two (2) types of employment discrimination:
 Citizenship status (M-274 “U.S. citizens, recent permanent
residents, temporary residents under the IRCA legalization
program, asylees and refugees are protected.” )
 National origin (M-274: “An employee’s national origin relates
to the employee’s place of birth, country of origin, ethnicity,
ancestry, native language, accent, or the perception that he or
she looks or sounds “foreign.” All U.S. citizens and
employment–authorized individuals are protected from
national origin discrimination.” )
M-274 Handbook for Employers, USCIS
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The employer may ask these questions,
but must ask all candidates
 Are you authorized to work indefinitely in the U.S. for
any employer?
 Will you now or in the future need a work visa
sponsorship from us if you are offered this position?
If a candidate indicates that they will need a visa
sponsorship to be an employee at the university,
please contact IP-GS prior to making a formal offer of
employment.
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Notes for the Employer
 The employer should not ask for copies of any specific
documentation; to do so is a violation of the
Immigration Reform and Control Act of 1986 (IRCA).
 Employees may complete Section 1 of Form I-9 at any
time between acceptance of a job offer and the first
day of employment. Documentation showing identity
and employment authorization must be provided by
the employee within 3 business days of their effective
date of employment.
 Self-disclosure regarding visa status or visa-related
sponsorship requirements by a prospective foreign
national employee is allowable.
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I-9 Lists of Acceptable Documents
All documents must be UNEXPIRED
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I-9 List A Documents that Establish Both
Identity and Employment Authorization
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I-9 List C Documents that Establish
Employment Authorization
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Things to Consider in the Hiring Process
 No federal regulations require a US employer to sponsor PR for anyone; it
is at a US employer’s discretion.
 Is the selected foreign national residing outside or in the U.S. now?
 If residing in the U.S. now, how his/her current immigration status is
related to the offered position.
 J-1/J-2, TN cannot hold permanent tenure-track position.
 J-1/J-2 with ACTIVE two (2) home country residence requirement is
not eligible for:
 Change of status to H-1B or PR in the U.S., or
 Applying for an H-1B visa or immigrant visa at a US embassy or
consulate abroad.
 H-1B is limited to a total of six (6) years in the U.S. working for any
U.S. employers.
 Do not make any promise of PR sponsorship if being asked by a foreign
national candidate, they may or may not be eligible subject to federal
regulations, institutional policies and individual situations.
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EB-2 Teaching Faculty SHLC – Before
Filing Labor Certification (LC)
 A more qualified foreign national candidate is
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selected.
IP-GS petitions H-1B.
Must obtain PWD from national prevailing wage
center, long time to be processed by DOL.
LC filing notice to be posted for 10 consecutive
business days.
Must file LC between 30 to 180 days after the LC filing
notice period is completed.
Must file LC within 18 months from the job offer
letter/selection date.
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EB-2 Costs
 IP service fee $1500, paid by the hiring unit
 LC filing: no cost
 I-140 fee $580, paid by the hiring unit
 Optional: $1225 premium processing fee.
 I-485 filing fee: $1070 for each applicant (personal
petition, not employer petition), paid by the foreign
national applicant.
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EB-2 Teaching Faculty PR Sponsorship
Steps and Timeline (1)
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Develop job advertisement contents and ad plan.
IP-GS reviews to ensure to meet DOL requirements for
LC filing purpose.
If a foreign national is selected, contact IP-GS to start
the H-1 process.
If the selected foreign national is eligible for H-1B
status, IP-GS files H-1B petition working closely with
the team members: the hiring unit, H-1B beneficiary,
etc.
H-1B petition approved, H-1B employee attends new
H-1B orientation conducted by IP-GS.
IP-GS contacts the hiring unit to start the PR process.
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EB-2 Teaching Faculty PR Sponsorship
Steps and Timeline (2)
Hiring unit sends copies of the job ads to ICS.
2. ICS files PWD with NPWC, DOL processing time may be
up to 3 months.
3. Hiring unit prepares and sends final recruitment
reports and statement of qualifications of the selected
foreign national to ICS.
4. ICS sends LC filing posting notice to the hiring unit with
instructions.
1.
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EB-2 Teaching Faculty PR Sponsorship
Steps and Timeline (3)
After the LC posting period is completed and sent to
ICS, ICS will file SHLC with DOL. Can only file LC
between 30 to 180 days after LC posting period is
completed, and must be within the 18 months window
from the selection date.
2. DOL processes unaudited LC in 4 – 6 months.
3. DOL processes audited LC one year or more.
4. DOL audit rate: 30% - 45%, random or target,
unpredictable.
1.
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EB-2 Teaching Faculty PR Sponsorship
Steps and Timeline (4) - I-140 Filing
 After LC is certified by DOL, ICS will file I-140 working
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closely with the hiring unit and the H-1B employee.
USCIS processes I-140 in 6 months or more.
Optional: I-140 premium processing is available with
additional $1225 fee.
If eligible, H-1B employee has the option to file I485/I-765/I-131 concurrently with I-140 filing, or
If eligible, file it after receiving I-140 receipt notice, or
If eligible, file it after receiving I-140 approval notice.
H-4 family dependent filing I-140 with H-1B employee.
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EB-2 Retrogression (1)
 Currently only for individuals born in India and China.
 Why is there a retrogression/backlog?
 Allotted 28.6% to each preference category (EB-1, EB-2,
and EB-3)
 No natives from a certain county can be over 7% of that
particular preference category.
 When demand is more than supply, a waiting list
develops.
 Cut-off/priority date
 The date that LC or I-140 is filed.
 Can only file I-485 when a immigration visa number is
available.
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EB-2 Retrogression (2)
 U.S. Dept. of State maintains “Visa Bulletin” to inform
the public the immigration visa number availability.
 EB April 2013 Visa Bulletin
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EB-2 I-485 Filing
 Personal petition, not employer’s petition.
 ICS gives the H-1B employee I-485 instructions when
preparing for his/her I-140 filing.
 H-1B employee can file it himself/herself, or
 Hiring an immigration attorney to file it on his/her
behalf.
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After Green Card is Received
 The beneficiary must send a copy of the green card to
IP-GS, the hiring unit and HRS to update his/her
immigration status record.
 IP-GS must withdraw LCA with DOL.
 IP-GS must withdraw H-1B approval with USCIS.
 If not withdrawing LCA and H-1B, the employer is
liable for payment of the required wages during the
validation period in certified LCA and approved H-1B.
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Green Card Holder
 To maintain PR status, must reside in the U.S. for at
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least 6 months each year.
More information: International Travel as a Permanent
Resident
Can live and work anywhere in the U.S.
Not eligible for rights or jobs reserved for U.S. citizens.
Eligible for naturalization of having been continuously
residing in the U.S. for 5 consecutive years.
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EB-1b Outstanding Researcher
 No LC is needed - no recruitment is needed.
 If meeting eligibility criteria, file I-140 with USCIS.
 File I-485 to obtain the actual green card.
 Attractive to EB-2 backlogged beneficiary - faster
track; however, must meet eligibility criteria.
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WSU PR Sponsorship Policy –
EB-1b Outstanding Researcher
 WSU PR sponsorship policy
 Permanent full-time research position
 In H-1B status sponsored by WSU for two years
 In H-1B status for three years in the U.S. for any U.S.
employers
 Recommend by IP-GS and approved by the Vice President of
Research
 Teaching faculty EB-2 has priority in processing
 USCIS eligibility criteria
1.
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3.
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Permanent full-time, tenured/tenure-track
At least 3 years experience in research or teaching in the
academic field
Recognized internationally as outstanding in the particular
academic field
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EB-1b Outstanding Researcher
 Documentation of at least two listed below:
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Evidence of receipt of major prizes or awards for
outstanding achievement.
Evidence of membership in associations that require their
members to demonstrate outstanding achievement.
Evidence of published material in professional publications
written by others about the alien's work in the academic
field.
Evidence of participation, either on a panel or individually,
as a judge of the work of others in the same or allied
academic field.
Evidence of original scientific or scholarly research
contributions in the field.
Evidence of authorship of scholarly books or articles (in
scholarly journals with international circulation) in the field.
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EB Self-Petition
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EB-2 National Interest Waiver
EB-1 Extraordinary Ability
No job offer needed
No LC needed
Notify IP-GS if filing self-petitioned PR: possible 7th
year H-1B extension – if I-140 has been pending or
approved for 365 days or more. (EB-2 backlogged
individuals, or I-485 pending individuals)
To benefit 7th year H-1B ext., recommended to file LC
or I-140 two years before reaching the 6 years limit.
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Other Considerations
No federal regulations require a US employer to sponsor PR
for anyone; it is entirely at a US employer’s discretion.
 Challenges: employer’s need vs. government policies to
protect US workers
 Retention
 Commitment for both the employer and the foreign
national employee
 Timing: up to two years or longer
 Costs: application fees
 Changing jobs when LC, I-140, I-485 pending
 Changing jobs after green card is obtained
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Question and Answers
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This has been a
WSU Training
Videoconference
If you wish to have your attendance
documented in your training history,
please notify Human Resource Services
within three days of today's date:
[email protected]

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