1. Employment-Based Immigration 101 for a University:
A Basic Understanding of Issues and Compliance
University of North Carolina at Asheville
October 23, 2017

2. Who is an International Faculty Member?
For the purpose of this presentation, an international faculty member is an EHRA employee of a UNC constituent institution that conducts research and/or teaches, and requires sponsorship for employment-based immigration purposes in order to be authorized to work in the U.S. temporarily and/or permanently.
This includes FTE or less researchers, instructors, lecturers, professors, as well as similar positions.

3. Two Overlapping Worlds in Employment-Based Immigration
Nonimmigrant: Foreign national seeking temporary entry to the U.S. for a specific purpose. Common employment-related nonimmigrant classifications include: foreign government officials, business visitors, tourists, treaty traders and investors, temporary workers and trainees, exchange visitors, and certain others.
Immigrant: Foreign national admitted to the U.S. as a lawful permanent resident (“green card” holder). Permanent residents are legally accorded the privilege of residing permanently in the United States and are authorized to work pursuant to their status.
Note: Family-based immigration deals with matters relating to nonimmigrant and/or immigrant status based on familial relationship. Some foreign nationals may pursue family-based immigrant status while in a nonimmigrant employment-based status.

4. Employment-Based Immigration: Sponsorship
The University does not have to sponsor an international faculty member for a nonimmigrant or immigrant classification if s/he lacks independent work authorization.
Even if the University sponsors an international faculty member for nonimmigrant status (e.g. H-1B), the University is not required to support immigrant sponsorship.
How do you know if a candidate for a position requires sponsorship in order to be work-authorized? Consult with EEO/HR offices.
Two acceptable questions for applicants that get you almost to a definitive answer:
(1) Are you legally authorized to work in the United States? __Y __N
(2) Will you now or in the future require sponsorship for employment visa status (e.g., H-1B visa status)? __Y __N
See

5. Employment-Based Immigration: Sponsorship
The hiring department should contact Elaine Warren in the Office of the Provost as soon as it is determined that the selected candidate requires nonimmigrant and/or immigrant sponsorship.
Assess what is possible and/or permissible before making promises or ideally even an offer.
Any offer that is made must account for the fact that should the University elect to sponsor a foreign national, the University cannot guarantee the success of a given nonimmigrant or immigrant process. Use specific language addressing this in offer letter.

6. Employment-Based Nonimmigrant Sponsorship
In order to obtain employment-based nonimmigrant status and thereby timely work authorization, certain steps must be undertaken by the University.
Involved federal agencies may include: DOL, DHS (USCIS, CBP, ICE) & DOS.
Each agency works on its own timeframe and some steps can’t be expedited.

7. Pause & Rewind: What about the recruitment ads?
If there is a possibility that the selected candidate might require nonimmigrant and/or immigrant sponsorship, it may prove advantageous to consider the language used in the job posting before publication.
Where? Should post in at least one national, professional journal. If online, for 30 days.
Documentation of postings: Tearsheets, website screenshots for first and last day of posting—must be conclusive as to where published, dates and content.
Considerations: Ads should state job title, duties and responsibilities.
What are the minimum requirements for the position?
Are the acceptable fields of study for the required degree clear?
Are preferences really requirements?
If experience is required, can it be quantified or clarified?
If a foreign language is required, state it in the posting.
Mention teaching!

8. Employment-Based Nonimmigrant Sponsorship
At the University, FTE or less*:
H-1B: the most common employment-based nonimmigrant category. Employer, position, and worksite specific.
TN: applicable to Mexican and Canadian nationals. Employer, position, and worksite specific. Finite list of applicable occupations, “University Teacher” is included.
E-3: Australian nationals. Employer, position, and worksite specific.
J-1: Exchange Visitors with specific categories including Short Term Scholars, Professors, and Researchers. Category specific, employer, and worksite specific.
O-1: based on extraordinary ability in the sciences, arts, education, business, or athletics. Employer, position, and worksite specific.
F-1 OPT: Optional Practical Training for (F-1) International Students in his/her field of study. Limited to 12 months - 36 months, depending on field of study (STEM or not).
*Most campuses in the UNC system elect not to sponsor for less than FTE in light of limited resources and issues that can arise in tracking work hours.

9. Employment-Based Nonimmigrant Sponsorship
H-1B: Most common nonimmigrant employment-based category
Limited to specialized occupations-meaning it requires theoretical and practical application of a highly specialized knowledge and attainment of a bachelor’s or higher degree in a specific specialty is minimum for entry into the occupation.
Strict wage requirements apply.
Limited to 6 years, but may extend beyond 6 if certain timely steps have been taken towards permanent resident status.
International faculty member is not required to maintain an intent to return abroad.
The Universities are exempt from the federal annual limit on H-1Bs.
USCIS processing times for H-1B petitions are unpredictable at this time.
Appears to be a significant increase in challenging RFEs presently.

10. Employment-Based Immigrant Sponsorship
FTE only: Two Types of Immigrant Petitions
“PERM” Special Handling (Labor Certification): Initial application filed by the University with DOL based on supporting documentation of a competitive recruitment and selection process—a market test. Position must be “permanent” and require some classroom teaching. Selected candidate must have been more qualified than any of the U.S. workers that applied. Application must be filed within 18 months of selection (date of offer). Detail driven and labor intensive process. Once DOL certifies the application, the Immigrant Petition is filed with U.S. Citizenship and Immigration Services.
Outstanding Researcher or Professor: Immigrant Petition filed by the University on behalf of the international faculty member. Must be tenure or tenure-track professor. If a researcher, must be a permanent appointment. The international faculty member must have 3 years teaching/research experience. High standard of review applies.

11. Employment-Based Immigrant Sponsorship
There are avenues to permanent residence (“green card”) which do not require the sponsorship of the University. Such “self- petitioning” includes seeking designation as an individual of extraordinary ability or recognition that his/her employment is in the national interest. The University does not sponsor such petitions and will not pay any associated legal or filing fees.

12. Employment-Based Immigrant Sponsorship: Special Handling Labor Certification
Test of US labor market
Limited to position with classroom teaching responsibilities
University must establish that the selected candidate (the international faculty member) was the more qualified candidate.
Candidate must meet the stated requirement for the position.
Intensive documentation.
Application is filed with DOL within 18 months of selection.
Applications are subject to for cause and random audits.
Application with DOL is only the first step in the immigrant process. After certification by DOL, file with Immigrant Petition with USCIS.

13. Employment-Based Immigrant Sponsorship: ORP
Outstanding Research and/or Professor Petitions: bypasses the need to establish that the University conducted any market test.
Requires the University to document that the international faculty member is recognized internationally as outstanding in his/her given field. Generally, must establish at least 2 of the following 6 criteria:
(1) Major prizes or awards
(2) Memberships in associations
(3) Published material by others about his/her work
(4) Serving as the judge of the work of others
(5) Original scientific (scholarly) research
(6) Authorship of scholarly books or articles
* Or “other” evidence of achievement

14. Employment-Based Immigrant Sponsorship: the Actual Green Card
Attaining Permanent Resident Status:
Whether the Immigrant Petition filed by the University is under PERM Special Handling or Outstanding Researcher or Professor, the petition filed by the University represents only one step in obtaining permanent resident status.
The international faculty member must file an Application to Adjust Status to Permanent Resident Status or Consular Process an Immigrant Visa Application. The University does not assist with these applications nor does it pay applicable fees. An international faculty member should be advised to retain personal counsel for assistance.
Background check is part of permanent residence process. An in-person interview at local USCIS office is required now at the final stage.

15. Employment-Based Immigrant Sponsorship: the Actual Green Card
Allocation of Immigrant Visas
Each month DOS publishes the Visa Bulletin which dictates the availability of an immigrant visas based on classification and birth country.
The Visa Bulletin reflects the annual limit on the number of immigrant visas.
Statistics/Immigrant%20Visa%20Control%20System_operation%20of.pdf

16. Expedited Processing of USCIS Petitions and Applications
U. S. Citizenship and Immigration Services offers a premium processing service for certain petitions and applications for an additional fee of $1, Petitions that may be expedited include H-1B petitions and most Immigrant Petitions.
Premium processing only guarantees that it will process the application or petition within 15 calendar days or refund the fee. This is not a promise of approval or denial within 15 calendar days, but only an obligation to review it and, if appropriate, deny or approve it. USCIS may issue a request for evidence instead.
Who pays for premium processing? If it is a University need, the university pays.

17. Dependent Family of International Faculty
It is the obligation of the international faculty member to handle the immigration matters, including maintenance of status of his/her dependents.
The University may allow the international faculty member to include with the University’s nonimmigrant petition/application, the dependent’s application for derivative nonimmigrant status. Essentially, the dependent’s application rides along in the same envelope to USCIS.

18. Visitors
Before a Foreign National visits the University, appropriate individuals on campus, such as those handling deemed export control and immigration- sponsorship matters, should be consulted.
Visitors who will be lecturing, guest teaching, or performing in an academic sponsored festival/event at the University’s invitation, generally fall into two categories relating to immigration:
(1) B-1 Business Visitors, not a sponsored status, but may accept an honorarium. Length of stay and activities is limited.
(2) J-1 Professors and Short-Term Scholars, a University-sponsored status. Must be handled by the SEVIS Responsible Officer at the University.

19. Ongoing Compliance Issues
Any changes to an international faculty member’s salary, worksite, job duties, etc., must be conveyed prior to the change to those at the University responsible for employment-based immigration matters. Such changes may impact status.
Leaves of Absence: if an international faculty member is taking a leave of absence at his/her request, s/he should make that request in writing. Such leave may or may not impact the immigration status of the international faculty member depending on the basis.

20. Separation from the University
If separation is concurrent with the end of the sponsored nonimmigrant status (e.g., H-1B), no action is needed with regard to immigration unless there is a pending application or petition that needs to be withdrawn.
If separation occurs prior to the end of the sponsored nonimmigrant status, such as H-1B, TN, or O-1, USCIS must be notified in writing of the separation whether voluntary or not.
If separation is not voluntary and occurs prior to the end of the sponsored nonimmigrant status, the employer may be obligated to pay the transportation cost for return of international faculty member to his or her home country.
Certain nonimmigrants are afforded a statutory or discretionary grace period to depart the U.S., change nonimmigrant status, etc.

21. Glossary of Terms Visa (Stamp in Passport) I-797 Notice of Action
I-94 Departure Record (electronic or paper)
Entry Stamp
I-551 Card (Green Card/Permanent Resident Card)
I-9 Employment Eligibility Verification Form
U.S. Citizenship and Immigration Services (USCIS)
U.S. Department of Labor (DOL)
U.S. Department of State (DOS)
U.S. Department of Homeland Security (DHS)
Customs and Border Protection (CBP)
Immigration and Customs Enforcement (ICE)
Student Exchange Visitor Information System (SEVIS)
I-20 Certificate of Eligibility for Student (F-1) Status
DS-2019 Certificate of Eligibility for Exchange Visitor (J-1) Status

22. Contact Information
Bridget S. Bishop, Assistant General Counsel Division of Legal Affairs | UNC General Administration P.O. Box 2688 Chapel Hill, North Carolina (919) (direct) | (919) (main)