Demystifying Immigration: - University of Alaska Anchorage

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
[email protected]
Some Preliminary Vocabulary…
Foreign National
Immigrant = “Green Card” = Lawful Permanent
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…
Visa = admission ticket (no guarantee of
I-94 card or a Employment Authorization
Document (EAD) = defines period of stay and
status in the United States during that stay
“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
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
Need Work Status approved before starting
Nonimmigrant Status
Limited in Duration of Stay
Limited in Activities Allowed
Available for hiring the foreign scholar or
faculty member, or administrator/nonfaculty position
F-1 Optional Practical Training
Optional Practical Training (“OPT”):
 Must be directly related to the major area of
 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
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.
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.
(A) The participant is transferring to the sponsor's
program as provided in Sec. 514.42; or
(B) The participant's presence in the United States was
of less than six months duration; or
(C) The participant's presence in the United States was
pursuant to a Short-term scholar exchange activity as
authorized by Sec. 514.21.
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
“Specialty Occupation” = Professional
Position must require a bachelor’s degree
in specific specialty
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
Once university or college’s offer is accepted by a
qualified foreign national:
Labor condition application (LCA) is prepared
LCA is filed with the DOL and posted on worksite
Upon receipt of certified LCA, the H-1B petition and
supporting documentation is filed with USCIS
Premium Processing Program $1,000 –
guarantees” 15 day processing time
Non-Premium = 4-6 months processing time
H-1B University Policy
The recruitment will be open for no shorter than 30 days.
All postings will be in UAKjobs as an external recruitment
30 days internet advertisement (
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
The department will cover all costs (attorney fees,
application fee, fraud fee, and expedited processing fee).
H-1B Basics
H-1B status is employer and job-specific
H-1B status valid for initial 3-year period and may be
extended for additional 3 years
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
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
Goal of the LCA is to protect all workers
Must be posted at the place of employment or
the principal place of business
Employer must attest to four basic items:
 Pay the prevailing wage (note: separate university
 Provide similar working conditions
 No strike or lockout
 Notice has been provided
H-1B Portability: Hiring a Foreign
National already in H-1B status
H-1B worker may begin employment
with new employer as soon as the H-1B
petition is filed.
O-1 Extraordinary Ability
Intended only for the top few in the field of expertise in the
Must have:
 Major award or prize (Nobel, Fields, etc.); OR
 Documentation from 3 of 8 categories specified in the Regulations;
 Other “comparable evidence”
The job need not require extraordinary ability
Initial O-1 period is 3 years, annual extensions indefinitely
thereafter in one year increments (foreign national must
continue to demonstrate extraordinary ability and
TN Classification
Available only to Mexican and Canadian Nationals
Specific list of occupations in NAFTA
One year initial admission – extensions can be
granted in one-year increments
Biggest obstacles: Demonstrating non-immigrant
intent and “fitting” within defined occupations
 For Canadians: Can apply directly at Class A POE/PFI
 For Mexicans: Can apply directly at the US Embassy
E-3 Classification
No USCIS petition required; apply for visa directly
with Consulate but limited to Australian citizens
All visa issuing US consulates in Australia accept
If in the US in an eligible status, can apply to change
status to E-3 through the USCIS
Admitted for two years
No maximum stay for E-3s
Limited to 10,500 per year
Spouse can get authorization to work
E-3 Requirements
Job offer from US employer (E-3 support
Must be filling a position in the US that
requires attainment of a bachelor’s degree
Must have foreign equivalent of a US
bachelor’s degree related to field of work
(experience equivalency allowed)
Certified Labor Condition Application (LCA)
All other normal visa application documents
Evidence that stay in US will be temporary
I-9 Requirements
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
Section 1 –
Employee Information
Section 2 –
Employee Documents
Section 3 –
By When Must the I-9 Be
Section 1 is to be completed by the
employee at the time employment begins
(Day 1).
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.)
Section 3 must be completed by the
expiration date of the foreign national’s
work permission.
Practical Hints — Section 1
Employee Authorization Verification v. NonDiscrimination
Do Not Ask For Any Documents To
Substantiate Section 1
Do Not Ask For Any Particular Documents
For Section 2 (from list A or B and C)
Review Documents Produced For Section
2 Against Section 1 And Give Employee A
Chance To Correct Section 1
Practical Hints — Section 2
Accept Any Document Specified in List A,
List B or List C, Provided That It Appears
To Be Genuine And To Relate To The
Make Sure Documents Proffered Are On
List A, List B or List C
Do Not Ask Employee To Complete Form I9 Prior To Offer of Employment
Do Not Consider Work Authorization Date
In Making Hiring Decision
Practical Hints — Section 2
Do Not Ask For INS/USCIS Document
Confirming Expiry Date of Work
Instructions Suggest Document Filing
Receipts = 90 Day Grace Period --- Be
Careful USCIS Position Has Changed
I-9 Penalties
Paperwork violations
 $110 to $1,100 per I-9 for errors or omissions
Knowing employment of unauthorized
 First: $275 -$2,200
 Second: $2,200 - $5,500
 Third: $3,300 - $11,000
Pattern or practice:
 $3,300 per and/or imprisoned for up to six
months in addition to civil penalties
Basic I-9 Issues/Violations
Citizenship status discrimination
National origin discrimination
Document abuse
 May not ask for more or different documents
 May not specify which documents are
 May not refuse to accept valid documents
Available for hiring the foreign scholar,
faculty member, and essential professional
staff for a permanent basis
University of Alaska policy; only for tenure
track faculty and IT staff
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
First Preference (EB-1)
 Extraordinary Ability, Outstanding Researchers and
Professors, and Managerial or Executive Transferees
 No Labor Certification requirement
Second Preference (EB-2)
 Exceptional ability, National Interest Waiver (NIW), and
advanced degree professionals
 No Labor Certification for NIW & Exceptional ability
Third Preference (EB-3)
 Professional, skilled, and unskilled workers
Why do the Preference categories matter?
First Preference:
Extraordinary Ability
Extraordinary Ability Foreign Nationals:
 Similar to O-1 nonimmigrant classification
Must have:
 Major award or prize (Nobel, Fields, etc.); OR
 Documentation from 3 of 10 categories specified
in the Regulations; OR
 Other “comparable evidence”
Documentation extensive/Scrutiny High
Outstanding Researchers
and Professors
Must demonstrate 3 years teaching or
research experience in academic area
Must have permanent job offer in a
tenured or tenure-track position or for a
term of indefinite duration
Must demonstrate at least 2 of 6
Second Preference:
National Interest Waiver
Waiver of Job-Offer Requirement (no
labor certification)
“National Interest” Test:
 Foreign national will work in area of “substantial
intrinsic merit”
 Foreign national’s proposed activity “national in
 “Foreign national will serve the national interest
to a substantially greater degree than an
available U.S. worker having the same minimum
Schedule A, Group II Labor
Certification Exemption
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
 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
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
Minimum Requirements = minimum
education, training, experience, and special
requirements needed to adequately
complete the core duties of the position
Timing of Recruitment
 Must be less than 180 days old at time of
 Recruitment does not have to cover entire
180 day period.
 Must have 30 day “Quiet” period before
Be careful as mistake in counting
days will cause a denial.
Staff Recruitment
Required Recruitment
 30 day Job Order with the State Workforce
 2 Sunday Newspaper Ads or 1 Professional
 Consecutive Sundays
 Notice of Job Availability (Paper Posting at
 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 (
 Employer’s web site (UAKjobs)
 On-campus recruiting
 Trade or professional organizations
 Private employment firms
 Employee referral program, if it includes identifiable
 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.
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
Faculty Recruitment
For faculty and research positions at UAA
 The recruitment will be open for no shorter than 30
 Set up the job in UAKjobs as an external recruitment
 30 days internet advertisement (
 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
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
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