The Catholic University of America

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; 8 CFR 214.2(h)

22 U.S.C. § 2451 et seq.; 22 C.F.R. § 62.1 et seq.(exchange visitors)

 

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-8 CFR 214.2(h)

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. The filing is done with Form  I-129

The work auhorization is limited to 2 or 3 years, but an individual may hold this status for up to 6 years.

Labor Condition Application: 20 CFR 655.700 and required under 8 CFR 214.2(h) (4)(iii)(B)((2) 

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. 

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. 

Record Retention for the H-1B: (Public Access File) 20 CFR 655.760(a)

Retention of records. Either at the employer's principal place of business in the U.S. or at the place of employment, the employer shall retain copies of the records required by this subpart for a period of one year beyond the last date on which any H-1B nonimmigrant is employed under the labor condition application or, if no nonimmigrants were employed under the labor condition application, one year from the date the labor condition application expired or was withdrawn. Required payroll records for the H-1B employees and other employees in the occupational classification shall be retained at the employer's principal place of business in the U.S. or at the place of employment for a period of three years from the date(s) of the creation of the record(s), except that if an enforcement action is commenced, all payroll records shall be retained until the enforcement proceeding is completed through the procedures set forth in subpart I of this part.

If no H-1B employee was hired, the records for the LCA must be kept for one year after the LCA was withdrawn. The Public Access File must be provided upon request, one working day after the LCA was filed. It does not have to have the actual name of the employee. Once the employee commences employment, the LCA must also be provided to the employee. 

Records to be kept are laid out in the regulation and include the following documents: 

  • A copy of the certified LCA, signed by the employer; 
  • Documentation which provides support for the wage rate paid to the employee (which must the wage provided for on the Form I-129;
  • An explanation of the wage rate and any increases; 
  • Documentation used by the employer to determine the prevaling wage; 
  • A copy of the documents with which the employee has satisfied the employee notification requirements ( the postings); 
  • A summary of the benefits offered to US workers in the same occupational classification of the H-1B worker; and
  • Other documentation as listed in 20 CFR 655.760(a).

 

Special Considerations under the H-1B 

Executive Order on Buy American and Hire American, issued April 18, 2017. 

Contains this text: 

In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.

 

 

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 provides that third party petitioners will be permitted to claim the exemption if the beneficiary will perform job duties at the qualifying institution that directly 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).  

Premium processing for I-485 (Adjustment of Status) applications will still not be available after the fee increase. See the ISSS web page for a list of filing fees for an H-1B. 

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.

  

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 the  Exchange Visitor Page for more. 

Resources

DOL Foreign Labor Certification 

International Student and Scholars Services Resource Page on Specific Employment Based Classifications

An overview of Basic Immigration information

NACUANOTES Export Compliance During the Visa Application Process (Feb. 11. 2011)

*** NACUANOTES Foreign Faculty in H-1B Status: Understanding the Basics (Nov. 10. 2009)

The Immigration Law Survival Guide for University Attorneys: June 2013 NACUA paper by Wm. Stock, Michael Pfahl, and Sean Burke. Excellent resource. 

 

 

updated 10-30-18 mlo