3.32 / Employment of Foreign Nationals

Purpose

This policy is to provide for uniformity in regard to University assistance with applications for temporary employment status and/or with applications for lawful permanent residency within the United States.

Preamble

The University can be a resource for full-time faculty and administrative staff in acquiring or, in some instances, maintaining lawful presence in the United States and eligibility to be employed with Wichita State University. Foreign nationals may lawfully enter the United States pursuant to a nonimmigrant or immigrant visa issued at a U.S. Consulate or documentation issued by the U.S. Citizenship and Immigration Services. It is important that the University have policies in place to seek compliance with all federal immigration and employment requirements.

This policy is intended to set forth the University's position on assisting employees with immigration matters and expenses. It is not a complete outline of the immigration process or the responsibilities of all the various offices of the University during that process. If this policy is ever in conflict with existing federal immigration law, federal law prevails.

Departments that anticipate foreign national applicants for job openings should consult with the Office of International Education or the Office of Academic Affairs as soon as possible. Questions of a legal nature should be referred to the General Counsel's Office. Early involvement with these offices will ensure that University policies are adhered to, federal law is complied with, and that timing and other hiring issues are resolved prior to the start of the individual's employment.

Definitions

1. Foreign National

   Any person residing in the United States who is not a U.S. citizen, or a permanent resident or "immigrant" as defined herein.

2. Department of Homeland Security (DHS)

   Oversees all functions of the U.S. Citizenship and Immigration Services (USCIS) and other governmental agencies assigned to administering and protecting U.S. borders.

3. U.S. Citizenship and Immigration Services (USCIS): Is responsible for the administration of immigration and naturalization adjudication functions and establishing immigration policies and priorities.

4. U.S. Department of Labor (DOL)

   Provides, through its Office of Foreign Labor Certification, national leadership and policy guidance to carry out the responsibilities of the Secretary of Labor under the Immigration and Nationality Act, as amended, concerning foreign nationals seeking admission to the United States for employment.

5. Immigrant

   A foreign national in the United States for an indefinite period as a U.S. lawful permanent resident, with Lawful Permanent Residency (LPR) status, i.e., “green card” holder. An immigrant can remain in the United States indefinitely and work without restriction for any U.S. employer.

6. Nonimmigrant

   A foreign national in the United States for a finite period on temporary legal status. A nonimmigrant can work only for a petitioning employer for the period of time granted by DHS.

7. Nonimmigrant classifications (as relevant to this policy)

   1. F-1: Status accorded to foreign national students admitted to the United States to study in an approved program.

   2. J-1: Status accorded to foreign national exchange visitors including students, faculty, researchers and scholars eligible to conduct duties as delineated by their status and program sponsor.

   3. H-1B: Status accorded to foreign national specialty occupation professionals who have been petitioned by an employer for a position that requires a bachelor degree or its equivalent as a minimum for entry into that position.

   4. TN: Status accorded to a Mexican or Canadian foreign national who has been petitioned by an employer for a position listed in the North American Free Trade Agreement.

   5. O-1: Status accorded to foreign nationals who have reached the very top of their field of endeavor and are considered one of the top experts in their field.

8. PERM Labor Certification application

   An application filed with the DOL for labor certification to proceed with application to USCIS for LPR status on behalf of non-teaching faculty and staff which involves a process called “Program Electronic Review Management" (PERM) Labor Certification. Under this method of obtaining a labor certification, the employer must advertise the employee's position to determine if there are available U.S. workers who meet the minimum requirements for the position.

9. Optional Special Recruitment

   A labor certification application with the DOL filed on behalf of college and university teaching faculty which has a beneficial standard of evaluation compared to the regular "Program Electronic Review Management" (PERM) Labor Certification applications defined herein. 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.

10. Visa

    Stamp placed in the foreign national's passport that enables the foreign national to apply for entry into the United States in the status listed on the visa.

Policy

1. The University will not knowingly employ, or continue in employment, individuals who do not meet the requirements of federal laws pertaining to immigration and naturalization. Further, all faculty and staff of the University must complete a Form I-9, Employment Eligibility Verification, in the presence of a designated representative of the University within three (3) days of commencing employment pursuant to the Immigration Reform and Control Act of 1986. See Section 3.20 of the WSU Policies and Procedures Manual.

2. Federal law strictly regulates the employment of foreign nationals in the United States. The Provost is the designated signatory for applications and petitions to be filed on behalf of the University with USCIS, DOL, or other immigration-related government agencies, which are related to the employment of foreign national faculty, staff, and/or students. These applications or petitions include, but are not limited to, the following:

   1. ETA 9035, Labor Condition Application, submitted to the DOL to support an H-1B petition;

   2. ETA 9089, Labor Certification Application, submitted to the DOL to initiate the "green card" process on behalf of an employee of the University; and

   3. Form I-129, Petition for a Nonimmigrant Worker, submitted to the USCIS.

3. All employment-based applications and petitions relating to requests for LPR status must be reviewed by the General Counsel's Office before these documents are submitted to the appropriate government agency. Nonimmigrant applications and petitions prepared by outside legal counsel when the University is sponsoring a student, faculty or staff for nonimmigrant status must be reviewed by the Office of International Education before these documents are submitted to the appropriate government agency.

4. Services rendered to, and on behalf of, foreign national employees under any aspect of this policy are at the discretion of the University. No right or entitlement accrues to any employee by virtue of this policy, or by virtue of having received any services under this policy.

5. This policy does not relieve the H-1B employee with a temporary nonimmigrant status of their responsibilities in maintaining their immigration status, or the status of their dependents, nor does it limit the employee's right to be represented by legal counsel.

6. Nonimmigrant status for temporary work authorization

   Most appointments of foreign national faculty or staff will first require the services of the Office of International Education. The determination of a prevailing wage for a position is an initial and integral step in the recruitment process. The hiring department should contact the Office of International Education for more information about a prevailing wage determination. Petitions for nonimmigrant (temporary) employment (H-1B, TN, O-1, J-1) are generally not referred to outside counsel and will be prepared by the Office of International Education.

7. Immigration petitions for Permanent Residency (Green Card) Status

   Foreign nationals appointed to faculty or staff positions, who are without LPR status, must work with their hiring departments, the Office of Academic Affairs, and the General Counsel's Office if they wish to pursue permanent residency. Employment-based petitions for permanent residency status are time-consuming and complex. Employment-based applications for DOL certification will generally be referred to outside counsel who have been approved by the General Counsel's Office.

8. Self-petitioned immigration applications for permanent residency status

   The University cannot advise on immigration applications when an employee self-petitions for LPR status (i.e., National Interest Waivers and Alien of Extraordinary Ability petitions). The University will not contract with outside counsel to provide such services for its employees.

Procedures

1. General

   1. When interviewing candidates for employment, the hiring department may obtain information concerning immigration status only when first raised by the applicant, or with narrowly tailored questions. For example, the interviewer should never specifically request a potential employee's employment eligibility documents before making an offer of employment but may make an offer of employment contingent upon work eligibility. It is generally permissible to ask applicants two questions: “Are you authorized to work in the U.S. full-time for all employers?” and “Will you require assistance from the University to obtain legal authorization to work?”

   2. During the course of the hiring process, a foreign national may require sponsorship to work for the University. If the applicant asks for sponsorship for an application for permanent residence or temporary work authorization, he/she has opened the door for a discussion of his/her status. All job offers shall be made subject to the prospective employee's authorization to work in the United States.

   3. The hiring unit cannot and must not promise LPR status to a foreign national as the process is complex, lengthy and inherently uncertain.

2. Temporary Work Authorization

   1. The Office of International Education will coordinate and handle the processing of H-1B and/or other temporary employment-related statuses for foreign nationals seeking permission to work in the United States at the University. The Office of International Education will initiate the petition process for H1-B status, upon receiving a request for preparing an H1-B form authorized by the appropriate dean or department chair, or in the case of research positions under the Office of Research and Technology Transfer, the Vice President for Research and Technology Transfer. The Office of International Education will provide a checklist of items that need to be compiled and provided by the relevant dean or department head of the hiring department, or his or her designee. Such items include a data form which needs to be completed regarding the foreign national and a copy of the signed offer letter, specifying the terms and conditions of employment before an application for H1-B or other temporary status may be submitted.

   2. The University is responsible for the Form I-129 filing fee and Fraud Detection fee associated with the filing of an application for H-1B status or other temporary employment-related status. The Office of International Education is responsible for contacting the Office of Academic Affairs to request checks for payment of such fees. In the case of fees not normally associated with the particular process, i.e., request for expedited processing by the USCIS or filing fees for dependent applications, the hiring department must submit, in writing, to the Office of Academic Affairs a request for approval, demonstrating the specific business-related necessity for the request. Documentation approving or denying the request will be retained in the same manner and for the same duration as other similar budget requests. Any fees paid by the University under this section will be paid by the department or employing unit of the University where the foreign national will be employed.

   3. The Office of International Education will prepare temporary work authorization petitions on behalf of the University, in consultation with the hiring department. However, if the hire of outside legal counsel is necessary to prepare the labor condition application and petition for H-1B status, such hire must be authorized by the Office of Academic Affairs. The General Counsel's Office must approve any fee agreement between the University and outside legal counsel.

   4. In cases where the foreign national has enlisted his or her own counsel for assistance in petitioning for any temporary status, the University will not pay any legal fees or expenses associated with such filing.

3. U.S. Lawful Permanent Residency

   1. A "Request for Assistance with Employment-based Petitions for U.S. Lawful Permanent Residence" form must be completed and submitted by a department or hiring unit to the Office of Academic Affairs for approval. If approved, the General Counsel's Office will serve as a liaison with outside legal counsel during the LPR process.

   2. To receive University sponsorship for an employment-based petition for permanent residency, the foreign national employee must meet the eligibility requirements of this policy in either Section IV.C.7 or IV.C.8.

   3. The Office of Academic Affairs must authorize the hiring of outside legal counsel for assistance in employment-related immigration petitions where the University is sponsoring the application or when financial support is provided by the University prior to the retention of such counsel. The General Counsel's Office must review and approve any fee agreement between the University and outside legal counsel, and should be consulted if legal questions arise during the process. The University is legally responsible for the payment of legal fees and expenses relating to the ETA 9089, Labor Certification process with the DOL, but is not responsible for other legal fees or expenses, such as the filing fees in connection with the I-140 or I-485 petitions with the USCIS. The University is not responsible for legal fees when the employee elects to retain separate counsel.

      1. If a department voluntarily chooses to pay the legal fees, expenses or filing fees associated with the I-140 or I-485 petitions, such payment must be recommended by the relevant dean or department head and approved by the Office of Academic Affairs.

      2. In the case of fees not normally associated with the particular process i.e., request for expedited processing by the USCIS or filing fees for dependent applications, the particular department must submit a written request for approval demonstrating the specific business-related necessity for the request to the Office of Academic Affairs. Documentation approving or denying the request will be retained in the same manner and for the same duration as other similar budget requests.

      3. Any immigration-related expenses paid by the University must be approved by the department head and the Office of Academic Affairs prior to the expense being incurred. Approval of expenses after-the-fact will be reviewed only in rare circumstances and approved on a case-by-case basis.

      4. Any fees paid by the University under this section will be paid by the department or employing unit of the University where the foreign national employee will be employed.

   4. The Provost is the designated University signatory for all outside attorney representations, i.e., G-28 which enables designated legal counsel to represent the University in support of an institutional immigration petition.

   5. The General Counsel's Office must review and the Provost must sign DOL applications for certification and the immigration petition(s) before such petitions or applications are submitted to federal authorities.

   6. Self-petitions that do not require University signature (i.e., National Interest Waiver and Alien of Extraordinary Ability petitions) may be pursued with privately retained counsel, but the University is not responsible for any fees or expenses associated with such petitions.

   7. Teaching Faculty

      1. Upon request by a foreign national employee, the relevant dean must approve employment-based permanent residency requests by submitting the “Request for Assistance with Employment-based Petitions for U.S. Lawful Permanent Residence” (form provided by the Office of Academic Affairs) to the Office of Academic Affairs for approval. If sponsorship is approved, the Office of Academic Affairs will provide a copy of the form to the Office of International Education and to the General Counsel's Office. Once approved by the Office of Academic Affairs, the employee may be referred to an outside attorney approved by the General Counsel for assistance with initiating the process for obtaining permanent residency on behalf of the foreign national employee.

      2. If the foreign national faculty member is not tenured, the hiring department must be able to confirm that the faculty is on tenure-track or the employment is for an “indefinite duration” as defined by DHS (see subsection (c)(iii) below). The Office of Academic Affairs will review these requests on a case-by-case basis and will return the form as approved or not approved to the relevant dean and, if approved, a copy to the Office of International Education. The foreign national faculty member's ability to apply for permanent residency is not an indication or determination of the faculty member's eligibility or qualification for tenure at the University. See Section 4.10 of this manual.

      3. The following are minimum requirements for consideration of University sponsorship for LPR status:

         1. The position must be full-time.

         2. The position must meet the DHS's definition of permanent. A permanent position is one that is tenured, tenure-track or does not have a definite termination point defined either by date or completion of a project or assignment, is not seasonal or intermittent, and is not presently intended or contemplated by the employer to have some specified end date in the future.

         3. To qualify for Optional Special Recruitment or “special handling” as a teaching position, the position must include classroom teaching which includes a registered course number at the University and the employee must be listed as the instructor of record.
            
            (A) Optional Special Recruitment is the preferred method for obtaining permanent residency for teaching faculty. Optional special recruitment requires that the position be advertised in a national print journal or publication. The U.S. Department of Labor also accepts electronic or web-based national professional journal advertisements, which must be posted for at least 30 calendar days on the journal's website. Documentation of the placement of an advertisement in an electronic or web-based national professional journal must include evidence of the start and end dates of the ad placement and the text of the advertisement.
            
            (B) To apply under the Optional Special Recruitment rules, the date of the original offer letter from the Office of Academic Affairs should be within the previous 15 months to complete the required verification process in time to meet federal requirements. The application with the DOL must be filed within 18 months of the decision to hire the individual in order to qualify for special handling.

      4. Departments are strongly encouraged to set up a preliminary informational meeting with the General Counsel's Office to discuss this policy, review the basic requirements for permanent residency, and assess the employee's eligibility for institutional support. The timing guideline immediately above for teaching positions must be followed.

      5. The General Counsel's Office will be the liaison between the hiring department and outside counsel for all labor certifications for teaching positions that meet the DOL's criteria for special handling. To meet the criteria for special handling, the employee's formal job responsibilities must include serving as the instructor of record and the teaching of an official university course or courses. Other academic appointee positions must follow the guidelines for non-teaching positions, set forth in Subsection IV.C.8 below.

      6. Applications for faculty and researchers who meet the criteria for “Outstanding Researcher or Professor” as defined by the DHS will be reviewed by the General Counsel's Office. Faculty or staff seeking to apply for permanent residency under this category will need to obtain outside legal counsel. To qualify, scholars must document that they are recognized internationally as outstanding in a specific academic area and have at least three years of experience in teaching or a permanent research position.

      7. The hiring department will be responsible for all fees required to be paid by the employer under federal law and regulations, including legal fees for an outside legal counsel who is retained to represent the University as the employer and the beneficiary jointly through the DOL PERM process, where applicable. The hiring department may pay the costs and expenses associated with the filing of the Form I-140 and the Form I-485 upon approval of the Office of Academic Affairs pursuant to Section IV.C.3.a.

   8. Staff And Non-Teaching Faculty

      1. Upon request by a foreign national employee, the relevant dean or department head must approve University sponsorship of employment-based permanent residency by submitting the form “Request for Assistance with Employment-based Petitions for U.S. Lawful Permanent Residence” (form provided by the Office of Academic Affairs) to the Office of Academic Affairs for approval. If sponsorship is approved, the Office of Academic Affairs will provide a copy of the form to the Office of International Education and to the General Counsel's Office. Once approved by the Office of Academic Affairs, the employee may be referred to an outside attorney approved by the General Counsel's Office for assistance with initiating the process for obtaining LPR status.

      2. The following are minimum requirements for consideration of University sponsorship for permanent residency:

         1. Generally, staff or non-teaching faculty members must be employed for at least two years before the University will consider a request for initiating the process to obtain permanent residency.

         2. The position must be full-time.

         3. The position must meet the DHS's definition of permanent. A permanent position is defined as one that does not have a definite termination point defined either by date or the completion of a project or assignment, is not seasonal or intermittent, and is not presently intended or contemplated by the employer to have a specified end date in the future.

         4. The foreign national must have been working at the University in a professional position in the sponsoring unit for a minimum of 12 consecutive months prior to the time of submitting the "Request for Assistance with Employment-based Petitions for U.S. Lawful Permanent Residence" to the Office of Academic Affairs.

         5. The University must have at least 36 months of expected future funding for the position held by the employee, as verified by the relevant department head. Grant-funded positions in which a three-year funding projection is not possible can still move forward if the department provides a statement of intent to fund the foreign national employee from grant funds, projected grant funds, or other funds available to the department.

         6. In some cases, foreign national employees may, because of timing or other immigration-related issues, require a determination before the required period of employment in subsection 8(b)(i) has ended. If the department approves a request for permanent residency sponsorship before the required employment period has ended, the department head must recommend to the Office of Academic Affairs that such sponsorship should be initiated on behalf of the foreign national employee and provide a definitive statement as to why the normal procedures cannot be followed in this instance. The Office of Academic Affairs will review requests on a case-by-case basis.

      3. Departments are strongly encouraged to set up a preliminary informational meeting with the General Counsel's Office to discuss this policy, review the basic requirements for permanent residency eligibility, and assess the employee's eligibility for institutional support. The timing guidelines immediately above for staff and non-teaching positions must be followed.

      4. After preliminary review of eligibility for institutional support, all non-teaching academic and professional staff requests may be referred to legal counsel who have been approved by the General Counsel's Office.

      5. Employer-related portions of the permanent residency process include Form ETA 9089, Application for Alien Employment Certification (where appropriate), and Form I-140, Immigrant Petition for Alien Worker. Employer-related portions do not include Form I-485, Application to Adjust Status, or Form DS-230, Application for Immigrant Visa. Upon approval of Form I-140 by the USCIS, the foreign national employee is responsible for filing Form I-485 or Form DS-230 with the appropriate government agency and within the appropriate time frame.

      6. In the event that the University enlists counsel to handle and/or assist with the filing of Form ETA 9089 and/or I-140, the University will be responsible for the attorney's legal fees and expenses associated with the preparation and filing of the foreign national employee's application only with regard to the Form ETA 9089. The University will not pay any expenses or fees associated with the preparation and filing of Form I-140 and “green card” application through Form I-485 or Form DS-230 on behalf of a foreign national employee and/or the foreign national employee's family members unless approved in accordance with Section IV.C.3.a above.

      7. The General Counsel's Office will not provide legal advice to the foreign national. The University will not advise the foreign national regarding the completion of Form I-485 or Form DS-230 or their submission to the appropriate office. The University will not advise the foreign national with regard to immigration issues concerning family members of the applicant and/or employee.

Implementation

This policy shall be included in the WSU Policies and Procedures Manual and shared with appropriate constituencies of the University.

The Provost shall have primary responsibility for publication, dissemination and implementation of this University policy.