DEMYSTIFYING IMMIGRATION:Charting the Course for Recruiting,

Hiring, andMaintaining a Foreign National Workforce

Presented by

John C. BhendSenior ConsultantHuman ResourcesOffice of Academic Affairs907.786.4673anjcb2@uaa.alaska.edu

Some Preliminary Vocabulary…

Citizen Foreign National Immigrant = “Green Card” = Lawful Permanent Resident 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 Considerduring this Presentation…

Visa = admission ticket (no guarantee of admission)

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 Sponsorship?

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

honorarium 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/non-faculty position

F-1 Optional Practical Training Optional Practical Training (“OPT”):

Must be directly related to the major area of study; 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 part-time 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.

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.

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 (highedjobs.com)

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 Education.

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 scale)

Provide similar working conditions

No strike or lockout

Notice has been provided

H-1B Portability: Hiring a ForeignNational 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

world

Must have:

Major award or prize (Nobel, Fields, etc.); OR

Documentation from 3 of 8 categories specified in the Regulations; OR

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 achievements)

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

Processing: 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 applications

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 letter)

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 –Re-verification

By When Must the I-9 Be Completed?

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. Non- Discrimination

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 Employee

Make Sure Documents Proffered Are On List A, List B or List C

Do Not Ask Employee To Complete Form I-9 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 Authorization

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 workers:

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 acceptable

May not refuse to accept valid documents

Retaliation

IMMIGRANT VISAS 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 Employment

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 Researchersand 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 categories

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 scope”

“Foreign national will serve the national interest to a substantially greater degree than an available U.S. worker having the same minimum qualifications”

Schedule A, Group II LaborCertification 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 & AdvancedDegree 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

USCIS and 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

Recruitment

Timing of Recruitment

Must be less than 180 days old at time of filing.

Recruitment does not have to cover entire 180 day period.

Must have 30 day “Quiet” period before filing.

Be careful as mistake in counting days will cause a denial.

Staff Recruitment Required Recruitment

30 day Job Order with the State Workforce Agency

2 Sunday Newspaper Ads or 1 Professional Journal

Consecutive Sundays

Notice of Job Availability (Paper Posting at worksite)

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 (higheredjobs.com)

Employer’s web site (UAKjobs)

On-campus recruiting

Trade or professional organizations

Private employment firms

Employee referral program, if it includes identifiable incentives

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 WageMust 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 higher.

Faculty Recruitment For faculty and research positions at UAA

The recruitment will be open for no shorter than 30 days.

Set up the job in UAKjobs as an external recruitment

30 days internet advertisement (highedjobs.com)

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 HandlingLabor 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 available)

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

Thank

You