Summary of Federal Laws
Employment
Miscellaneous Employment Laws
The Immigration and Nationality Act of 1952 (INA) (as amended)
8 U.S.C. § 1101 et seq.; 20 CFR Part 655;
22 U.S.C. § 2451 et seq.; 22 C.F.R. § 62.1 et seq.
For additional information, see the Immigration and Nationality Act (as amended) in the sections of this summary on Students.
Employment Based Non-Immigrant Classifications
Academic institutions sponsor foreign nationals for a variety of nonimmigrant statuses. The employment based statuses most commonly found on academic campuses are listed below. It is important to note that employment authorization is employer specific and often position specific.
H-1B Temporary Worker in Specialty Occupation
The purpose of the H-1B status is the temporary employment of a foreign national in a position that requires the application of a specialized body of knowledge. In other words, the position must require at least a bachelor's degree in a specific field or related fields. An individual may hold this status for up to 6 years. An employer hiring non-immigrant workers temporarily entering the U.S. on H-1B visas must file a Labor Condition Application (LCA) (Form ETA 9035). The LCA must show that the higher of the actual wage or the prevailing wage will be paid, and that the alien's employment will not adversely affect U.S. workers. The exchange visitor regulations are contained at 22 C.F.R. § 62.
Special Considerations under the H-1B
TARP Funding
H-1Bs and the Armerican Recovery and Reinvestment Act of 2009
If the university receives money under the economic stimulus plans it could affect the ability to sponsor newly hired foreign faculty for H-1B status. Specifically, money from the Troubled Asset Relief Program (TARP) or Section 13 of the Federal Reserve Act (FRA) would trigger compliance with the following regulations that govern H-1B dependent employers. The school would have to make the following three attestations to the Department of Labor:
A. Displacement: The employer will not displace any similarly employed U.S. worker within the period beginning 90 days before and ending 90 days after the date of filing a petition for an H-1B nonimmigrant supported by the application.
B. Secondary Displacement: The employer will not place any H-1B nonimmigrant employed pursuant to this application with any other employer or at another employer's worksite UNLESS the employer applicant first makes a bona fide inquiry as to whether the other employer has displaced or intends to displace a similarly employed U.S. worker within the period beginning 90 days before and ending 90 days after the placement, and the employer applicant has no contrary knowledge.
C. Recruitment and Hiring: Prior to filing any petition for an H-1B nonimmigrant pursuant to this application, the employer took or will take good faith steps meeting industry-wide standards to recruit U.S. workers for the job for which the nonimmigrant is sought, offering compensation at least as great as required to be offered to the H-1B nonimmigrant. The employer will (has) offer(ed) the job to any U.S. worker who (has) applied and is equally or better qualified than the H-1B nonimmigrant (section 1611 of the ARRA).
Academic Exemption from CAP
June 6, 2006 USCIS memo on H-1B cap exemption . This 11 page memo clarifies the definition of "institution of higher education" and "employed at" a qualifying institution rather than "employed by" in the H-1B context. There is also guidance on the following questions of the nature of the affiliation that a nonprofit entity must have with an institution of higher education and to what extent must an organization be involved in "research" to be considered a "research organization." The memo provdies that third party petitioners will be permitted to claim the exemption if the beneficiary will perform job duties at the qualifying institution that directory and predominantly further the mission or essential of the qualifying institution.
Filing Fees
Department of Labor Regulations specify that fees associated with the filing of an H-1B petition are considered business costs of the employer and should not be passed on to the employee. See 20 CFR 655.731 (c)(9)(ii).
Honoraria Payments to H-1B status holders
Employment authorization for H-1Bs is limited to their sponsor. Thus, the H-1B employee may not
receive honoraria payments from other institutions. However, faculty and researchers are
often expected to present their work in appropriate academic venues as part of their job
description. In these instances, the H-1Bs can engage in normal academic activity at other
institutions representing their employer and honoraria payments must be made to the H-1B
sponsoring institution which can pass the payment on to the H-1B employee.
Nurses
Immigration Guidance on H-1B Visas for Registered Nurses
On Nov. 27, 2002 the Bureau of Citizenship and Immigration Services (BCIS, formerly INS) issued a field guidance that clarifies when a nurse will be eligible for an H-1B visa. Summaries of the guidance are provided by Jackson Lewis: Immigration Issues Guidance on Adjudication of H-1B Petitions for Nurses and VisaLaw.Com: INS Provides New Guidance on H-1B Visas for Registered Nurses.
J-1 Exchange Visitors (Visiting Professors, Research Scholars, Short Term Scholars, Specialists)
The purpose of the J-1 is to bring qualified foreign nationals to the US to engage in periods of international educational and cultural exchange. Activities range from teaching to research to sharing their expertise. This visa category is not considered an *employment* or *work* visa in the sense that they cannot be used to fill permanent employment positions.
Sanctions
Final Rule, Exchange Visitor Program-Sanctions and Terminations, 72 Fed. Reg. 72245, Dec. 20, 2007
These final rules which become effective January 22, 2008 make it easier for the Department of State to impose sanctions on institutions that sponsor foreign exchange programs. A finding of willfulness or negligence on the part of the institution is no longer necessary. The criteria for imposing sanctions are very broad, such as not serving US public diplomacy goals, for undermining foreign policy objectives and compromising national security interests, for endangering health or safety of participants, or for bringing the program into notoriety or disrepute. The rules does not require the Department of State to produce any documentary evidence to justify a sanction. See the NAFSA web page on this new rule, which includes an edited version of the rule showing how the new rule modifies the old rule.
Five Year Limit for Professors and Research Scholars
Participation in the Exchange Visitor Program as Professor and Research Scholar, Final Rule, 70 Fed. Reg. 28815 (May 19, 2005)
This rule amends the Department's Exchange Visitor Program regulations set forth at 22 CFR 62.20 by extending the duration of program participation for professors and research scholars from the current three years to five years. In addition, this rule implements a limitation on the eligibility of an extension for the professor and research scholar categories and implements a two-year bar for repeat participation to encourage and foster the purpose of the Mutual Educational and Cultural Exchange Act of 1961 (``Fulbright-Hays Act''). Additional minor modifications have been made throughout Sec. 62.20 for administrative purposes due to the implementation of the Student and
Exchange Visitor Information System (SEVIS). The continuous (not aggregate) five year period is calulated in calendar years from the participant's program begin date documented in SEVIS at the time the SEVIS record is validated. A scholar in good status may depart and reenter the U.S. an unlimited number of times in the five calendar years. There is a two year bar on repeat visits by the professor or research scholar upon completion of the five year period. This rule is effective the later of June 20, 2005 or the date upon which the Department of Homeland Security publishes notice in the Federal Register that necesssary technical changes to SEVIS have been implemented.
Responsible Officers
Section 22 C.F.R. § 62.9(f)(2) contains a general requirement that a university administering an exchange visitor program must ensure that the employees involved in the administration of the program are adequately qualified, appropriately trained, and comply with the Exchange Visitor Program regulations. A person who is serving as a responsible officer or an alternate responsible officer must certify that he or she is a U.S. citizen or permanent resident. In addition, pursuant to 22 C.F.R. § 62.13(a)(3), the university must promptly notify the Department of State of any change in the responsible officer. A variety of sanctions apply for failure to comply with the requirements listed above. See Proposed Changes to the Exchange Visitor Rule for possible new requirements.
Payment to J-1 Visiting Professor
Information on occasional lectures or consultations given by J-1 visa holders and the requirements to be able to compensate them is found at 22 C.F.R. § 62.20(g).
Recordkeeping
Federal regulations require a three-year retention period for all records pertaining to exchange visitors under a J-1 visa. See 22 C.F.R. § 62.10(h). See Proposed Changes to the Exchange Visitor Rule for possible new requirements.
TN Treaty
Resources
International Student and Scholars Services Resource Page on Specific Employment Based Classifications
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An overview of Basic Immigration information
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updated 9/29/09 to add link to proposed rule on J program, mlo
Last Revised 29-Sep-09 01:01 PM.
