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; 20 CFR 656.10 et seq.; 8 CFR 204.5; 

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 Ability 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 ability. 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. 

 

Note: The PERM process has several different steps, listed below. The PERM process is set forth at 20 CFR 656.10 -20 CFR.10-32.  There are two types of recruitment, basic recruitment under 20 CFR 656.17 and special recruitment (for college and university professors) under 20 CFR 656.18

Recordkeeping for PERM process and PERM Audit File

The PERM Audit File should have the following documents: 

  • A copy of the submitted ETA Form 9089;
  • Proof of business necessity if relevant (see 20 CFR 656.17(h)
  • Notice of filing documentation and that it was posted for 10 business days and accessible to all employees;
  • Recruitment Report;
  • Prevailing Wage Determination;
  • Job Order placed with the State workforce agency if required by the regulations and/or a job order if listed as a recruitment force; and 
  • Documentation required in20 CFR 656.17(e)

For college and university teacher special recruitment: 

  • A statement signed by an official with actual hiring authority outlining in detail the complete recruitment procedures undertaken, the total number of job applicants, and the specific lawful job related reasons why the foreign worker is more qualified than any US worker who applied for the position; 
  • A final report, if any, of the faculty, student or administrative body making the recommendation or selection of the foreign worker;
  • A copy of the ad for the job opportunity and evidence of all other recruitment sources; 
  • A written statement attesting to the degree of the foreign worker's educational or professional qualifications and academic achievements; 
  • A copy of the Prevailing Wage Determination. 
  • Copies of applications for permanent employment certification filed with the DOL and all supporting documentation must be retained by the Employer for 5 years from the date of filing. (20 CFR 656.10 (f))

Permanent Residence Process and Allocation of Fees

Phase One=-PERM-The regulations prohibit the employee from paying any fees and costs for this phase.

20 CFR 656.10 et seq.

Step One: Prevailing Wage
First, the employer requests a prevailing wage determination. The Employer has to  be offering 100% of the prevailing wage in the area.

Step Two: Recruitment
Employer seeks workers to fill position. 

Step Three: Quiet Period.
30 day period waiting for resumes. 

Step Four:
If the Employer does not find a qualfied willing US worker, then the Employer files the applicaton for Permanent Employment Certification or PERM. (ETA-9089)  The Employer  must pay for this step. In this step, the Employer lists the qualifications for the job, all of it, and how the person meets them.

Phase Two=I-140- this finalizes the PERM 

8 CFR 204.5 

Once the PERM application is certified by DOL (which is for 6 months), then the Employer must file (w/in the 6 months) the I-140 Immigrant Worker Petition.  The Employer must show (demonstrate with documents such as copies of degrees, transcripts) the person  meets the qualifications for the job.

There are no restrictions on who pays for this step, but many university employers cover these costs at least for faculty.

Phase Three: Adjustment of Status: Green Card

Finally, after the I-140 is approved, the last step is adjustment of status, or obtaining the green card. Either party can pay.  The form used is I-485. If person is not in US, then consular processing may be needed. Also in phase three, country of birth and priority date (date PERM filed) dictates their eligibility to file for adjustment of status.

 

 

Questions and Answers

Q. Can a person who is here in the states on a G (diplomatic) visa volunteer to teach for the University? And is she does, may we pay for her travel expenses?

A. No. This is not permissible under immigration law. Even though she is not technically employed, she would be viewed as if she were an employee. Under the employment law analysis, reimbursement for the expenses would be seen as pay. This might put the volunteer at risk for violating her status. 

 Please see 8 CFR 214.2(g) Representatives to International Organizations-

(10) Unauthorized employment. An alien classified under section 101(a)(15)(G) of the Act who is not a principal alien and who engages in employment outside the scope of, or in a manner contrary to this section, may be considered in violation of section 241(a)(1)(C) (i) of the Act. An alien who is classified under section 101(a)(15)(G) of the Act who is a principal alien and who engages in employment outside the scope of his/her official position may be considered in violation of section 241(a)(1)(C)(i) of the Act.

Note: For faculty under EB-2, they have to file special handling PERM w/in 18 months of initial offer letter.

Note: The Form- I-485 was redesigned in June 2017. See USCIS Introduces Redesigned Form for Green Card Applicants.  Phase One=-PERM-The regulations prohibit the employee from paying any fees and costs for this phase.

 Q. Who pays the fees for the PERM process?

A. Please see the chart above, for Phase One, Two and Three of the Process. The sponsoring employer is responsible for all fees and costs associated with Phase One. See also Minsky, McCormick &Hallagan, PC blog: Who pays for H-1B and Green Card Fees?; and SHRM: Who Pays for H-1B and Green Card Fees?

Resources

The three stages of employer sponsored permanent residence via perm by Maggio Kattar

ICE Policy Memorandum (PM-602-0157) Feb. 28, 2018 Contracts and Itineraries Requirements for H-1B Petitions Involving Third Party Worksites *

Contracts as evidence to demonstrate the beneficiary will be employed in a specialty occupation.
When a beneficiary will be placed at one or more third-party worksites, the petitioner must demonstrate that it has specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested on the petition. The petitioner will need to show that:
• The petitioner has a specific work assignment in place for the beneficiary;
• The petition is properly supported by a Labor Condition Application (LCA) that
corresponds to such work; and
• The actual work to be performed by the H-1B beneficiary will be in a specialty
occupation based on the work requirements imposed by the end-client who uses the
beneficiary’s services. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000).

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

Employment in the US. NAFSA Poster with Visa Classifications on who may be employed in US

Attorney Russell Ford's Business Immigration Cheat Sheet 

 Pace University Guidelines for Sponsoring H1-B visas and Permanent Residents

USCIS Permanent Workers***

USCIS Employment Based Immigration-EB-2 for Permanent Workers ***

USCIS Employment Based Immigration-EB-1 (Extraordinary Ability)***

I-485 Application to Register Permanent Residence or Adjust Status

University of Wisconsin Power Point on H-1B Portability: Posted with Permission of the UW International Faculty and Staff Services

Harvard Financial Policy on Honororia and Reimbursement for Foreign Nationals

 Note: IHE's generally exempt from H-1B cap-See USCIS powerpoint

LC v. LCA: What is the Difference? (Fox Rothschild LLP)

 

 

updated  11-8-18