Summary of Federal Laws
|Director International Student and Scholar Services|
|AVP for Human Resources|
Miscellaneous Employment Laws
The Immigration and Nationality Act of 1952 (INA) (as amended)
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.
Employment Authorization for Certain H-4 Dependent Spouses, Final Rule, 80 Fed. Reg. 10284, Feb. 25, 2015
Final rule issued by the Department of Homeland Security (DHS) that extends eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. Effective May 26th, 2015.
Getting an H-1B Sponsorship for an Employee, by FordMurray. Lays out the steps in the process very clearly.
Special Considerations under the H-1B
USCIS announces temporary suspension of H-1B premium processing (March 2017)
The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017, and will be implented as a way to deal with the current backlog of cases. The suspension also applies to cap exempt petitions.
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.
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).
USCIS fees will increase for applications postmarked on or after Dec. 23, 2016. These are the fees that will be increased:
Form Old ($) New ($) I-129 (H-1B, L-1, O-1, etc.) 325 460 I-539 (H-4, L-2, O-3, etc.) 290 370 I-140 (immigrant petition) 580 700 I-485 Adjustment of Status 985 + 85 (bio fee) 1140 + 85 (bio fee) I-485 (child) 635 750 I-131 (adv parole, reentry prmt) 360 575 I-765 (EAD work authorization) 380 410 N-400 (citizenship) 595 + 85 (bio fee) 640 + 85 (bio fee) Premium Processing Fee 1225 1225
Premium processing for I-485 (Adjustment of Status) applications will still not be available after the fee increase.
Courtesy of Attorney Russell C. Ford, of FordMurray.
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.
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.
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.
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.
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.
Pa yment to J-1 Visiting Professor
yment 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).
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.
Proposed Rule (Feb. 8, 2010)
Proposed Rule by USCIS Adding Deemed Export Acknowledgement to Form I-129. 75 Fed. Reg. 6212, Feb. 8, 2010. U.S. Citizenship and Immigration Services (USCIS) has proposed an update to Form I-129 petition, which would for the first time require petitioners to attest that "deemed export" control rules have been complied with in relation to the beneficiary. See the AAU and COGR letter to the USCIS dated April 9, 2010 setting forth their position on the proposed rule.
Georgetown University H-1B Request Form with Deemed Export Language included for compliance with new I-129 rules
NAFSA Resource Library: Form I-129 Export Control Attestation Practice Resource
NACUANOTES Export Compliance During the Visa Application Process (Feb. 11. 2011)
*** NACUANOTES Foreign Faculty in H-1B Status: Understanding the Basics (Nov. 10. 2009)
Comments on above NACUANOTE from Helene Robertson, Director International Student and Scholar Services CUA.
Please note, it is each school's Designated School Official where the individual studies who issues I-20s. There is no formal position of "SEVIS Officer."
Form DS 2019 (certificate of eligiblity for exchange visitor status) may come into play in hiring a foreign scholar as many researchers and/or professors convert from J-1 status to H-1B.
The government grants periods of H-1B status consistent with what the employer requests - up to three years. The employer is in the driver's seat here.
With respect to volunteer work, it is important to remember that wage and hour regulations also apply and that generally people cannot volunteer in a position that is normally a paid position. One disadvantage of the TN is that it requires the individual to have non-immigrant intent (which means maintaining ties to Canada or Mexico) and to return to Canada or Mexico. The longer one holds TN status, the more in question that intent can become.
updated fee chart 11-7-2016