Becoming a Permanent Resident Washington State University Policies and Legal Processes November 3, 2009 Presented by Janet Cheetham, Attorney, Ryan Swanson and Cleveland, PLLC and Dena Neese, Immigration Specialist, WSU

Recording date of this workshop is November 3, Some of the rules and procedures discussed in this workshop are subject to change. Please check university resources before relying exclusively on this recorded presentation.

Agenda 1) Overview: Employment-Based Immigration/Visa Bulletin Categories & Chargeability 2) Steps in the Permanent Residence Process 3) Timeline for Permanent Residence Process/Impact of Retrogression 4) Maintenance of nonimmigrant status while processing toward permanent residence/travel considerations + work authorization options

Agenda, cont’d 5) WSU Permanent Residence Sponsorship Policy 6) Pathways to Permanent Residence  Special Handling Labor Certification*  Standard/Regular Labor Certification*  Outstanding Professor/Researcher*  National Interest Waiver  Extraordinary Ability 7) Questions * Employer sponsor required

Overview: Employment Based Immigration Visa Bulletin Categories Visa Bulletin Categories Chargeability Chargeability

Steps in the Permanent Residence Process Possible steps: Possible steps: (1) Labor Certification Application with Department of Labor (file date est. priority date for retrogression purposes). (2) I-140 Immigrant Visa Petition with US Citizenship and Immigration Services (if no labor certification, est. priority date). (3) I-485 Adjustment of Status Application to Become a Permanent Resident with US Citizenship and Immigration Services.

Timeline for PR/Impact of Retrogression

NIV Status While Processing Toward PR General considerations – F, J and H General considerations – F, J and H Travel considerations once I-485 filed – when to use Advance Parole, when using NIV visa stamp is okay Travel considerations once I-485 filed – when to use Advance Parole, when using NIV visa stamp is okay Work – Employment Authorization Document vs. H-1B NIV work status Work – Employment Authorization Document vs. H-1B NIV work status

WSU Permanent Residence Sponsorship Policy* In-House In-House –Special Handling Labor Certifications –Outstanding Professor/Researcher Petitions SAAG SAAG –Standard/Regular Labor Certifications * For processes requiring an employer-sponsor

WSU Special Handling Labor Certification Sponsorship Policy All full-time tenured/tenure-track teaching faculty hired into the position based upon a national competitive search that included at least one print ad in a journal of national circulation. All full-time tenured/tenure-track teaching faculty hired into the position based upon a national competitive search that included at least one print ad in a journal of national circulation. OISS automatically commences SHLC process with department the semester of hire. OISS automatically commences SHLC process with department the semester of hire. General position types: Assistant Professors, Associate Professors, Full Professors General position types: Assistant Professors, Associate Professors, Full Professors

WSU Special Handling Labor Certification Sponsorship Policy Some indefinite or fixed-term, teaching faculty positions in job titles such as Instructor Some indefinite or fixed-term, teaching faculty positions in job titles such as Instructor –NOT initiated immediately upon hire –Must be “permanent,” full-time position –Hiring unit must have long term commitment to faculty member –Hiring Unit requests Provost’s Office to allow sponsorship– if approved, OISS commences “reselection” process with department.

WSU Outstanding Professor and Researcher Petition Policy Tenured/tenure-track full-time faculty positions Tenured/tenure-track full-time faculty positions –ONLY IF labor certification immigrant visa category is retrogressed –Hiring unit must agree to support case (and must meet legal standard) –Must first file labor certification application –Will form queue to evaluate cases, based upon WSU hire date and retrogressed labor certification filing date.

WSU Outstanding Professor and Researcher Petition Policy Non-tenured, tenure-track research faculty positions (Assistant Research Professor or higher, Research Scientist, Senior Scientist) Non-tenured, tenure-track research faculty positions (Assistant Research Professor or higher, Research Scientist, Senior Scientist) –Must have worked at WSU in H-1B status for two years, or must have been in H-1B status for three years; Must have made commitment to remain at WSU; and Hiring unit must substantiate firm funding commitment –VP for Research & OISS must vet case/VP for Research must approve case

WSU Outstanding Professor and Researcher Petitions, cont’d –Researcher and Supervisor must schedule meeting with OISS  OISS evaluates CV and background to determine viability of case, based on outstanding researcher legal requirements.  If OISS deems viable, hiring unit must obtain university approvals

WSU Standard/Regular Labor Certification Sponsorship Policy Hiring Unit must work with assigned SAAG – OISS does not file in-house Hiring Unit must work with assigned SAAG – OISS does not file in-house Pursuant to federal regulations, the employer/hiring unit, and not the employee, must pay all legal and other fees associate with the preparation and filing of a standard labor certification application. Pursuant to federal regulations, the employer/hiring unit, and not the employee, must pay all legal and other fees associate with the preparation and filing of a standard labor certification application. Must work through OISS/AG’s Office Must work through OISS/AG’s Office

WSU Standard/Regular Labor Certification Sponsorship Policy Full-time, tenured/tenure track library and extension faculty positions Full-time, tenured/tenure track library and extension faculty positions –Office of the Provost, hiring unit and OISS vet case –Hiring unit must receive approval from Office of the Provost to proceed

WSU Standard/Regular Labor Certification Sponsorship Policy Full-time, non-tenured/tenure track, nonteaching research faculty positions of indefinite duration (ex: Asst Research Professor, Research Scientist) Full-time, non-tenured/tenure track, nonteaching research faculty positions of indefinite duration (ex: Asst Research Professor, Research Scientist) –Must have worked at WSU in H-1B status for 2 years, or must have been in H-1B status for three years; Must have made commitment to remain at WSU; and Hiring unit must substantiate firm funding commitment –Office of Research, OISS and Hiring Unit must vet case –Must receive approval from Office of Research to proceed

WSU Standard/Regular Labor Certification Sponsorship Policy Full-time Administrative Professional Positions Full-time Administrative Professional Positions –Must have worked at WSU in H-1B status for 2 years, or must have been in H-1B status for three years; Must have made commitment to remain at WSU; and Hiring unit must substantiate firm funding commitment –Director of Human Resource Services, OISS and Hiring Unit must vet case –Must receive approval from Human Resource Services to proceed

Special Note – I-485 Permanent Residency Application WSU does not prepare and file the I-485, permanent residency application, for any faculty WSU does not prepare and file the I-485, permanent residency application, for any faculty –IF OISS case, meet with OISS – receive checklist/general information –OISS recommends that faculty work with outside legal counsel but faculty may choose to prepare and file the I-485 on their own

Special Handling Labor Certification Process Requires employer-sponsor – individual cannot self- petition Requires employer-sponsor – individual cannot self- petition EB-2 category (position requires Master’s or higher) EB-2 category (position requires Master’s or higher) Three steps to the SHLC Permanent Residency Process Three steps to the SHLC Permanent Residency Process –Special Handling Labor Certification filed with US Department of Labor (approx. 4 months) –I-140 Immigrant Visa Petition filed with US Citizenship and Immigration Services (approx. 8 months) –I-485 Adjustment of Status/permanent residency application filed with US Citizenship and Immigration Services (approx. 1-2 years, if retrogression, maybe longer)

Who Benefits from SHLC? Colleges and Universities– but not defined in regulation Colleges and Universities– but not defined in regulation GAL (5/23/94) defined colleges and universities as educational institutions which: GAL (5/23/94) defined colleges and universities as educational institutions which: –Admit only high school grads or equivalent –Legally authorized by Federal or State government to provide postsecondary education –Provide Bachelor’s or higher degrees, or have programs giving full credit towards such degrees. (Includes vocational/trade schools ONLY IF programs accepted for credit toward four-year degrees)

Why Special? Statutory exception allows colleges/universities to pick foreign applicant and sponsor him/her as long as he/she is “more qualified” than each available US worker applicant pool. Statutory exception allows colleges/universities to pick foreign applicant and sponsor him/her as long as he/she is “more qualified” than each available US worker applicant pool. Congress created statutory exception to the regular labor certification “no minimally qualified and available US workers” standard to give colleges and universities wide latitude in selecting teachers of their choice to maintain excellence in US system of higher education. Congress created statutory exception to the regular labor certification “no minimally qualified and available US workers” standard to give colleges and universities wide latitude in selecting teachers of their choice to maintain excellence in US system of higher education.

Qualifying Positions Position must be permanent (but need not be tenured/tenure track) and full-time (as determined by institution) Position must be permanent (but need not be tenured/tenure track) and full-time (as determined by institution) Job duties must include “actual classroom teaching” – interpreted broadly Job duties must include “actual classroom teaching” – interpreted broadly May include a variety of duties/include multiple titles (teaching, research, advising, agricultural extension duties, director duties, administrative duties, etc.) May include a variety of duties/include multiple titles (teaching, research, advising, agricultural extension duties, director duties, administrative duties, etc.)

What is classroom teaching? Not defined in federal regulation Not defined in federal regulation “No minimum hours of actual classroom teaching is required to bring an application within the scope of the special handling procedures for college and university teachers.” GAL (5/23/94) “No minimum hours of actual classroom teaching is required to bring an application within the scope of the special handling procedures for college and university teachers.” GAL (5/23/94) Certifying Officer allowed to ask number of hours spent teaching. GAL Certifying Officer allowed to ask number of hours spent teaching. GAL 48-94

What is classroom teaching? On-line courses? On-line courses? Team teaching? Team teaching? Veterinary or Medical school rounds? Veterinary or Medical school rounds? Teaching other teachers to teach? Teaching other teachers to teach?

Filing Deadline Must file SHLC within 18 months “after a selection is made pursuant to a competitive recruitment and selection process” Must file SHLC within 18 months “after a selection is made pursuant to a competitive recruitment and selection process” –Important to be consistent in interpretation –Widely accepted, most conservative view– labor certification must be filed within 18 months of offer letter date –Could view selection date as date alien accepts offer or date department receives final approval for selection from governing board, if this is required

Print Advertisement Requirement One print ad in a professional journal of national circulation One print ad in a professional journal of national circulation –Must state job title, job duties and job requirements (potential issues with extra language such as “experience preferred” requirements) –Duties language must include teaching –Must state contact information/how to apply for the position – should not simply refer to on-line Notice of Vacancy

Print Advertisement Requirement Frequent questions about ads. What about… Frequent questions about ads. What about… –Which journals? –Pointer ads? –Internet ads? –Announcement in national conference job listing? –Compilation of job postings?

Posting Requirement Notice of Job Opportunity Posting Notice of Job Opportunity Posting –For non-union jobs, must be posted for 10 consecutive BUSINESS days at worksite location –For union jobs, must be given to Collective Bargaining Representative –Must state position title, requirements and duties –Must include contact information of Dept of Labor Certifying Officer –Must be posted for at least 30 days but not more than 180 days before labor certification filed.

Posting Requirement Notice of Job Opportunity posting – in all house media Notice of Job Opportunity posting – in all house media –In addition to posting at job site location, must post in “all in-house media, whether electronic or print... Within the employer’s organization” if employer normally uses such media for recruitment. –NOT required if media open to the world on the Internet. –Per memos/liaison meetings, DOL has stated full notice need not be posted in in-house media – but must give sufficient notice to interested persons of the labor certification filing; must apprise reader that any person may provide documentary evidence bearing on application. –Ex: Department Newsletter

Prevailing Wage Determination Requirement Must obtain Prevailing Wage Determination from the State Workforce Agency in the state where the employee will be working Must obtain Prevailing Wage Determination from the State Workforce Agency in the state where the employee will be working –Offered wage on SHLC must meet or exceed prevailing wage determination –If OES/ACWIA survey wage too high, can request SWA to use private survey to make determination, as long as survey meets DOL private survey requirements

Recruitment Report Requirement Recruitment report statement, signed by hiring authority, including: Recruitment report statement, signed by hiring authority, including: –Detailed, complete recruitment procedures undertaken; –Total number of applicants; –Specific lawful, job-related reasons why the chosen candidate was more qualified than each US worker applicant;

Report of Faculty/Statement of Qualifications Requirements Final report of the faculty, student and/or administrative body making the recommendation or selection of the alien, at the completion of the competitive recruitment and selection process Final report of the faculty, student and/or administrative body making the recommendation or selection of the alien, at the completion of the competitive recruitment and selection process Written statement attesting to alien’s educational and professional qualifications Written statement attesting to alien’s educational and professional qualifications

Audit File Requirements Signed Recruitment Report/final Report of Faculty Signed Recruitment Report/final Report of Faculty Statement of Qualifications Statement of Qualifications Copy of one print ad from nat’l professional journal Copy of one print ad from nat’l professional journal Evidence of all other recruitment sources used Evidence of all other recruitment sources used Executed Notice of Filing Executed Notice of Filing Prevailing Wage Determination Prevailing Wage Determination Signed offer letter, to show date of selection Signed offer letter, to show date of selection Evidence that alien meets position requirements (diploma, transcripts, experience/skills letters, if applicable, CV) Evidence that alien meets position requirements (diploma, transcripts, experience/skills letters, if applicable, CV)

Beneficiary’s Qualifications Must possess required educational degree – either by date of selection or by date of hire, depending on what ad states Must possess required educational degree – either by date of selection or by date of hire, depending on what ad states Must possess any required experience/skills prior to date of selection Must possess any required experience/skills prior to date of selection Foreign degree equivalency evaluation may be required Foreign degree equivalency evaluation may be required

Reselection of Someone in Job Nothing in the regulations prohibit a college of university from “reselecting” a candidate for a special handling labor certification application Nothing in the regulations prohibit a college of university from “reselecting” a candidate for a special handling labor certification application The fact that a reselection has occurred is completely transparent on the application since employment history required The fact that a reselection has occurred is completely transparent on the application since employment history required Process – sometimes can seem arduous to depts Process – sometimes can seem arduous to depts Generally requires new offer letter after selection made – new offer letter starts the 18 month clock Generally requires new offer letter after selection made – new offer letter starts the 18 month clock

Reselection – when might it occur? When dept not sure it wants to file labor certification immediately, so miss 18 month window When dept not sure it wants to file labor certification immediately, so miss 18 month window When university misses 18 month window When university misses 18 month window No print ad placed during initial search No print ad placed during initial search

Standard/Regular Labor Certification Process (Janet Cheetham will discuss) (Janet Cheetham will discuss)

Outstanding Professor or Researcher Category Requires employer sponsor – researcher cannot self-petition Requires employer sponsor – researcher cannot self-petition Employment-based first category (EB-1B) Employment-based first category (EB-1B) Two steps to permanent residency: Two steps to permanent residency: –I-140 Outstanding Professor/Researcher premium processing now allowed) –I-485 Adjustment of Status/permanent residency application filed with USCIS (approx months)

Outstanding Professor or Researcher Legal Requirements Recognized internationally as outstanding in a specific academic area Recognized internationally as outstanding in a specific academic area Has 3 years teaching/research experience in academic area Has 3 years teaching/research experience in academic area –Experience in teaching/research counted while working on advanced degree if degree is acquired, persons has full responsibility for class taught, or research ahs been recognized as outstanding in academic field

Outstanding Professor or Researcher Legal Requirements Seeks entry for these types of positions: Seeks entry for these types of positions: –A tenured/tenure track teaching position; –Comparable research position at university or institute of higher education (tenured, tenure track or a permanent offer, defined as an offer of indefinite or unlimited duration in which the researcher will have an expectation of continued permanent employment unless there is good cause for termination; OR

Outstanding Professor or Researcher Legal Requirement –Comparable position to conduct research with private employer if it employs at least 3 persons full-time in research activities and the department, division or institution has achieved documented accomplishments in an academic field.

Outstanding Professor or Researcher Legal Requirements Evidence that the professor or researcher is recognized internationally as outstanding in the academic field must include at least two of the following: Evidence that the professor or researcher is recognized internationally as outstanding in the academic field must include at least two of the following: –Evidence of original scientific research; –Authorship of scholarly books or articles in the field; –Published materials in professional publications written by others about the applicant’s work; –Evidence of the person’s participation as a judge of the work of others

Outstanding Professor or Researcher Legal Requirements –Receipt of major prizes or awards for outstanding achievement; –Membership in an association which requires outstanding achievement Other comparable evidence – grant funding awards, patents, testimony from users, etc. Other comparable evidence – grant funding awards, patents, testimony from users, etc.

Expert Opinion Letters – used to show evidence of original scientific research Important evidence Important evidence NOT general recommendation letters NOT general recommendation letters No required number – quality more important than quantity No required number – quality more important than quantity Letters from experts not closely associated with applicant considered by USCIS to be more objective Letters from experts not closely associated with applicant considered by USCIS to be more objective Letters from experts in other countries/other US regions helpful Letters from experts in other countries/other US regions helpful

Pros/Cons to Outstanding Professor or Researcher case Advantages – EB-1 is least likely category to retrogress Advantages – EB-1 is least likely category to retrogress Disadvantages: USCIS discretion required, extensive evidence, takes significant time & effort to prepare Disadvantages: USCIS discretion required, extensive evidence, takes significant time & effort to prepare Every case is unique – preparer must be creative in searching for evidence

National Interest Waiver & Extraordinary Ability Janet Cheetham will discuss Janet Cheetham will discuss

Questions??

WSU employees attending this session via videoconferencing and who wish to have it documented on their training history must notify Human Resource Services within three days of the session date: