presented by jan keiser immigration compliance specialist international programs – global services...
TRANSCRIPT
Presented by Jan KeiserImmigration Compliance Specialist
International Programs – Global Services Department (IP-GS)For the Campus Hiring Units
March 27, 2013
U.S. Permanent Residence Overview
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Disclaimer
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Information presented here is not final or conclusive as they are subject to change any time.
Updates and feedbacks are constantly incorporated. Consult with appropriate personnel related to a
specific situation for a specific individual.
U.S. Permanent Resident
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PR/LPR/Green Card holderNon U.S. citizen, entitled to live and work in the U.S.
permanently for any job and live anywhere in the U.S. except those that require U.S. citizenship.
Evidenced by a “green card.”Issued for ten years, renewable.Naturalization after having continuously resided in the
U.S. for five consecutive years.Naturalization after having been continuously resided in
the U.S. for 3 consecutive year for those married for at least 3 years to a U.S. citizen.
Green Card/Permanent Resident Card
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Ways to Get PR
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Family basedDiversity lotteryInvestorsAsylum/RefugeesEmployment based
Employment-Based Preferences
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EB-1EB-1a/EB-11 Extraordinary AbilityE-1b/EB-12 Outstanding Professor or Researcher
EB-2EB-21 Advanced degree holders
College teachers, Special Handling LC proceduresOthers, standard LC procedures
EB-22 Exceptional ability in the sciences, arts and businessEB-3 ProfessionalsEB-4 Certain special immigrantsEB-5 Investors
WSU PR Sponsorship Policy (1)
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Only employment - based, employer - sponsored PRPosition must be permanent, full-timeEB-2 teaching faculty has priority in processingEB-1b Outstanding ResearcherOthers, case by caseCannot use a private outside attorney for EB categories to petition
on behalf of WSU. Do not sponsor PR for the following positions including but not
limited to: Temporary positions, e.g. post-docsGenerally civil service or AP positionsStudent employee positions, e.g. graduate student assistants
Do not sponsor PR for others not based on employment at WSU
WSU PR Sponsorship Policy (2)
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EB-2 Teaching FacultyTenure-track/tenured permanent full-time positionJob title: Assistant/Associate/Full ProfessorHas priority in processingEB-1 Outstanding ResearcherPermanent research positionJob title: Assistant/Associate/Full Research ProfessorIn H-1B status with WSU for at least 2 years orIn H-1B status with any US employers for at least 3 yearsApproved by the Office of Vice President of Research
EB-2 College/University Teachers
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1. Complete competitive full-swing bona fide recruitment steps for an open position.
2. File Labor Certification (LC) application utilizing special handling procedures.
3. File I-140, Immigration Petition for Alien Worker after LC is certified by DOL.
4. File I-485, Application to Register Permanent Residence or Adjust Status to obtain the actual green card.
5. After receiving the actual green card, the beneficiary must update IP-GS, hiring unit, HRS and other appropriate agencies.
EB Job Advertisement
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Purpose: to test the job market to protect U.S. workers, not to help a U.S. employer to find a specific type of employee like a regular search.
Job advertisement contents:1. Name of the employer, job location2. Job title, nature of the job (permanent full-time)3. Job duties, TEACHING, actual classroom teaching4. Requirements, preferred?5. Method to contact the employer, how to apply6. EEO
Job advertisement plan: national search
EB Recruitment Documents Retention
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Placed in a national academic journal, either in print or web-based
Tear-sheets of job ad, when-duration, and where (national academic journal)
Final recruitment reportStatement of qualifications of the selected foreign
national candidatePart of the pre-filling requirements to file LCLC audit
Interviewing Questions Related to Employment Eligibility
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The Immigration Reform and Control Act of 1986 (IRCA) protects two (2) types of employment discrimination: Citizenship status (M-274 “U.S. citizens, recent permanent
residents, temporary residents under the IRCA legalization program, asylees and refugees are protected.” )
National origin (M-274: “An employee’s national origin relates to the employee’s place of birth, country of origin, ethnicity, ancestry, native language, accent, or the perception that he or she looks or sounds “foreign.” All U.S. citizens and employment–authorized individuals are protected from national origin discrimination.” )
M-274 Handbook for Employers, USCIS
The employer may ask these questions, but must ask all candidates
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Are you authorized to work indefinitely in the U.S. for any employer?
Will you now or in the future need a work visa sponsorship from us if you are offered this position?
If a candidate indicates that they will need a visa sponsorship to be an employee at the university, please contact IP-GS prior to making a formal offer of employment.
Notes for the Employer
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The employer should not ask for copies of any specific documentation; to do so is a violation of the Immigration Reform and Control Act of 1986 (IRCA).
Employees may complete Section 1 of Form I-9 at any time between acceptance of a job offer and the first day of employment. Documentation showing identity and employment authorization must be provided by the employee within 3 business days of their effective date of employment.
Self-disclosure regarding visa status or visa-related sponsorship requirements by a prospective foreign national employee is allowable.
I-9 Lists of Acceptable DocumentsAll documents must be UNEXPIRED
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I-9 List A Documents that Establish Both Identity and Employment Authorization
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I-9 List C Documents that Establish Employment Authorization
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Things to Consider in the Hiring Process
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No federal regulations require a US employer to sponsor PR for anyone; it is at a US employer’s discretion.
Is the selected foreign national residing outside or in the U.S. now? If residing in the U.S. now, how his/her current immigration status is related to the
offered position. J-1/J-2, TN cannot hold permanent tenure-track position. J-1/J-2 with ACTIVE two (2) home country residence requirement is not
eligible for: Change of status to H-1B or PR in the U.S., or Applying for an H-1B visa or immigrant visa at a US embassy or consulate
abroad. H-1B is limited to a total of six (6) years in the U.S. working for any U.S.
employers. Do not make any promise of PR sponsorship if being asked by a foreign national
candidate, they may or may not be eligible subject to federal regulations, institutional policies and individual situations.
EB-2 Teaching Faculty SHLC – Before Filing Labor Certification (LC)
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A more qualified foreign national candidate is selected.IP-GS petitions H-1B.Must obtain PWD from national prevailing wage center,
long time to be processed by DOL.LC filing notice to be posted for 10 consecutive business
days. Must file LC between 30 to 180 days after the LC filing
notice period is completed. Must file LC within 18 months from the job offer
letter/selection date.
EB-2 Costs
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IP service fee $1500, paid by the hiring unitLC filing: no costI-140 fee $580, paid by the hiring unitOptional: $1225 premium processing fee.I-485 filing fee: $1070 for each applicant (personal
petition, not employer petition), paid by the foreign national applicant.
EB-2 Teaching Faculty PR Sponsorship Steps and Timeline (1)
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1. Develop job advertisement contents and ad plan.2. IP-GS reviews to ensure to meet DOL requirements for
LC filing purpose.3. If a foreign national is selected, contact IP-GS to start
the H-1 process.4. If the selected foreign national is eligible for H-1B
status, IP-GS files H-1B petition working closely with the team members: the hiring unit, H-1B beneficiary, etc.
5. H-1B petition approved, H-1B employee attends new H-1B orientation conducted by IP-GS.
6. IP-GS contacts the hiring unit to start the PR process.
EB-2 Teaching Faculty PR Sponsorship Steps and Timeline (2)
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1. Hiring unit sends copies of the job ads to ICS.2. ICS files PWD with NPWC, DOL processing time may be
up to 3 months.3. Hiring unit prepares and sends final recruitment
reports and statement of qualifications of the selected foreign national to ICS.
4. ICS sends LC filing posting notice to the hiring unit with instructions.
EB-2 Teaching Faculty PR Sponsorship Steps and Timeline (3)
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1. After the LC posting period is completed and sent to ICS, ICS will file SHLC with DOL. Can only file LC between 30 to 180 days after LC posting period is completed, and must be within the 18 months window from the selection date.
2. DOL processes unaudited LC in 4 – 6 months.3. DOL processes audited LC one year or more.4. DOL audit rate: 30% - 45%, random or target,
unpredictable.
EB-2 Teaching Faculty PR Sponsorship Steps and Timeline (4) - I-140 Filing
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After LC is certified by DOL, ICS will file I-140 working closely with the hiring unit and the H-1B employee.
USCIS processes I-140 in 6 months or more.Optional: I-140 premium processing is available with
additional $1225 fee. If eligible, H-1B employee has the option to file
I-485/I-765/I-131 concurrently with I-140 filing, orIf eligible, file it after receiving I-140 receipt notice, orIf eligible, file it after receiving I-140 approval notice. H-4 family dependent filing I-140 with H-1B employee.
EB-2 Retrogression (1)
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Currently only for individuals born in India and China.Why is there a retrogression/backlog?
Allotted 28.6% to each preference category (EB-1, EB-2, and EB-3)
No natives from a certain county can be over 7% of that particular preference category.
When demand is more than supply, a waiting list develops. Cut-off/priority date
The date that LC or I-140 is filed.Can only file I-485 when a immigration visa number is
available.
EB-2 Retrogression (2)
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U.S. Dept. of State maintains “Visa Bulletin” to inform the public the immigration visa number availability.
EB April 2013 Visa Bulletin
EB-2 I-485 Filing
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Personal petition, not employer’s petition.ICS gives the H-1B employee I-485 instructions when
preparing for his/her I-140 filing.H-1B employee can file it himself/herself, or Hiring an immigration attorney to file it on his/her
behalf.
After Green Card is Received
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The beneficiary must send a copy of the green card to IP-GS, the hiring unit and HRS to update his/her immigration status record.
IP-GS must withdraw LCA with DOL.IP-GS must withdraw H-1B approval with USCIS.If not withdrawing LCA and H-1B, the employer is
liable for payment of the required wages during the validation period in certified LCA and approved H-1B.
Green Card Holder
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To maintain PR status, must reside in the U.S. for at least 6 months each year.
More information: International Travel as a Permanent Resident
Can live and work anywhere in the U.S. Not eligible for rights or jobs reserved for U.S. citizens. Eligible for naturalization of having been continuously
residing in the U.S. for 5 consecutive years.
EB-1b Outstanding Researcher
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No LC is needed - no recruitment is needed. If meeting eligibility criteria, file I-140 with USCIS.File I-485 to obtain the actual green card. Attractive to EB-2 backlogged beneficiary - faster
track; however, must meet eligibility criteria.
WSU PR Sponsorship Policy – EB-1b Outstanding Researcher
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WSU PR sponsorship policyPermanent full-time research positionIn H-1B status sponsored by WSU for two yearsIn H-1B status for three years in the U.S. for any U.S. employersRecommend by IP-GS and approved by the Vice President of
ResearchTeaching faculty EB-2 has priority in processing
USCIS eligibility criteria1. Permanent full-time, tenured/tenure-track2. At least 3 years experience in research or teaching in the
academic field3. Recognized internationally as outstanding in the particular
academic field
EB-1b Outstanding Researcher
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Documentation of at least two listed below:1. Evidence of receipt of major prizes or awards for outstanding
achievement. 2. Evidence of membership in associations that require their
members to demonstrate outstanding achievement.3. Evidence of published material in professional publications
written by others about the alien's work in the academic field.4. Evidence of participation, either on a panel or individually, as a
judge of the work of others in the same or allied academic field.5. Evidence of original scientific or scholarly research
contributions in the field.6. Evidence of authorship of scholarly books or articles (in
scholarly journals with international circulation) in the field.
EB Self-Petition
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EB-2 National Interest Waiver EB-1 Extraordinary Ability No job offer needed No LC needed Notify IP-GS if filing self-petitioned PR: possible 7th year
H-1B extension – if I-140 has been pending or approved for 365 days or more. (EB-2 backlogged individuals, or I-485 pending individuals)
To benefit 7th year H-1B ext., recommended to file LC or I-140 two years before reaching the 6 years limit.
Other Considerations
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No federal regulations require a US employer to sponsor PR for anyone; it is entirely at a US employer’s discretion.
Challenges: employer’s need vs. government policies to protect US workers
RetentionCommitment for both the employer and the foreign
national employeeTiming: up to two years or longerCosts: application fees
Changing jobs when LC, I-140, I-485 pendingChanging jobs after green card is obtained
Question and Answers
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please notify Human Resource Services within three days of today's date:
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