Summary of Federal Laws                                          

Compliance Partners

Director International Student and Scholar Services

AVP for Human Resources

Related Policies

Employment Practices and Procedures

                                        

 

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.

 

Immigrant Employment Based Classifications

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There are five employment-based permanent residency classifications.  Each has specific eligibility criteria and application procedures.  The classification pursued can potentially affect the length of time it takes for the international employee to obtain permanent residency.  For more detailed information about the classifications see Employment Based Permanent Residency.

    Aliens of Extraordinary Ability

Aliens of Extraordinary Ablity is a classification available to individuals who are recognized as leaders in their field and can document their contributions and standing. It is intended for people who have reached the pinnacle of their field, i.e. Nobel Prize winners or individuals who have achieved high levels of recognition. This particular classification does not require an employer to petition USCIS on behalf of the foreign national, though it does not hurt. This classification is exempt from labor certification. The process is initiated directly with USCIS.

 

    Outstanding Professor/Researcher

Outstanding Professor/Researcher is a classification available to individuals who have been in their field for at least three years and can document original contributions and high level standing in their field. The threshold criteria for this classification is less than that for aliens of extraordinary ablity. This requires an employer to petition immigration on behalf of the foreign national. This classification is exempt from labor certification. The process is initiated directly with USCIS.

 

  Labor Certification (Special Handling for Teaching Positions and Regular)

Individuals who do not qualify for a classification that exempts the sponsor from testing the US Labor Market must initiate the sponsorship process with the Dept. of Labor through a process known as Labor Certification. There are two types of Labor Certification: Special Handling and Regular. Special Handling is reserved for positions that involve classroom teaching and the university can document that a foreign national was identified as the most qualified applicant through a search that was conducted within 18 months of filing. Regular processing applies to all other positions and involves an intricate series of recruitment efforts aimed at establishing that the foreign national is the only qualified applicant.

 

Labor Certification for the Permanent Employment of Aliens in the United States; Reducing the Incentives and Opportunities for Fraud and Abuse and Enhancing Program Integrity,Final Rule 72 Fed. Reg. 27903 May 17, 2007

The Final Rule provides a 180-day validity period for approved labor certifications; employers
will have 180 calendar days within which to file an approved permanent labor certification in support of a Form I-140 Immigrant Petition for Alien Worker (Form I-140 hereafter) with the Department of Homeland Security (DHS). The rule prohibits the sale, barter or purchase of permanent labor certifications and applications. In addition, this rule requires employers to pay the costs of preparing, filing and obtaining certification. An employer's transfer to the alien beneficiary of the employer's costs incurred in the labor certification or application process is strictly prohibited. This final rule is effective July 16, 2007 and applies to permanent labor certification applications and approved certifications approved filed under the PERM program and prior regulations.

 

Summary of  Cost Allocation between employer and employee in place after adoption of new rule (Provided Courtesy of Russell Ford, Littler Mendelson, PC)

A.  Lawful Permanent Residence ("green card")

1. PERM (Labor Certification Application): Under the DOL's new rules, the employer (i.e., college) must bear the costs associated with the preparation and filing of a PERM application with the DOL including, but not limited to, the advertising costs and attorney's fees (in most situations).

2. I-140 Immigration Petition for Alien Worker: There is no legal obligation for the employer to pay any costs associated with the preparation and filing of an I-140 with the USCIS.

3. I-485 Application to Adjust Status to Permanent Residence: There is no legal obligation for the employer to pay any costs associated with the preparation and filing of an I-485 with the USCIS.

B. Nonimmigrant Matters (i.e., H-1B, O-1, TN, etc.)

* Currently, the only obligation held by an employer in the nonimmigrant context is with regard to the H-1B. An employer must pay the $500 Fraud fee and cannot pass this cost along to the employee. (In addition, the employer must pay the $1,500 training fee but colleges are exempt from this fee). Finally, if the college terminates the employee before the end of his H-1B status, then the college must offer the H-1B employee return transportation home (including the offer to pay for this transportation).

 

 

 

New page 6/10/09 with assistance of Helene Robertson, Director ISSS CUA