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.
Immigrant Employment Based Classifications
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 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.
ICE Policy Memorandum PM-602-0005.1 Evaluation of Evidence Submitted with Certain Form I-140 Petitions; Revisions to the Adjudicator’s Field Manual (AFM) Chapter 22.2, AFM Update AD11-14; Dec. 22, 2010
This Policy Memorandum (PM) provides guidance regarding the analysis that U.S. Citizenship and Immigration Service (USCIS) officers who adjudicate these petitions should use when evaluating evidence submitted in support of Form I-140, Immigrant Petition for Alien Worker, filed for:
- Aliens of Extraordinary Ability under section 203(b)(1)(A) of the Immigration and Nationality Act (INA);
- Outstanding Professors or Researchers under section 203(b)(1)(B) INA; and
- Aliens of Exceptional Ability under section 203(b)(2) INA.
University of Texas at Brownsville on behalf of Murat Karabulut, BALCA case No. 2010-PER-00887, Issue Date July 20, 2011.
Employer university placed an advertisement for job in the national professional journal *Inside Higher Ed* which is only available electronically. This was to comply with PERM regulations, 20 CFR 656.17 and 18. An FAQ on the OFLC website on the Dept. of Labor had indicated electronic journals did not meet the regulatory requirement. The Board of Alien Labor Certification Appeals disagreed with the FAQ, and stated that FAQ responses cannot create a substantive rule adverse to an applicant without notice and rulemaking. The ad in the electronic only professional journal was found to be permissible.
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 C. Ford, Attorney, Graham Adair)
A. Lawful Permanent Residence ("green card")
1. Form ETA 9089 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). An EB-1 (aliens of extraordinary ability) bypasses this stage, but step 2 is more complicated for them.
2.Form 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, but if this step is not done in house, most employers pay the cost for the legal fees and filing as this is their petition.
3.Form 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, and most schools leave the costs of this step up to the individual, although in some instances the Department pays the costs of this filing.
Note: For faculty under EB-2, they have to file special handling PERM w/in 18 months of initial offer letter.
For a Special Handling PERM, the first step in the process is to ensure that it is a qualifying teaching position. If yes, then we next look at the competitive recruitment that was completed. Generally, the DoL wants to see a print ad in a national journal (such as the Chronicle of Higher Education) along with some other minor advertisements over a “normal” period of recruitment. Absent a print ad, if the university places all recruitment online, then the university must show: (1) The advertisement for the job opportunity for which certification is sought must be posted for at least 30 calendar days on the journal's Web site; and (2) Documentation of the placement of an advertisement in an electronic or web-based national professional journal must include evidence of the start and end dates of the advertisement placement and the text of the advertisement – see Department of Labor PERM FAQs [PERM FAQs, College and University Teachers - Recruitment, FAQ 6].
B. Nonimmigrant Matters (i.e., H-1B, O-1, TN, etc.)
Form ETA 9035E The employer in the nonimmigrant context must pay the filing fee of $325 for the H-1B, as well as all legal fees. Also an employer must pay the $500 fraud fee which goes with the initial application only (not the extension) 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). The only thing the employee might have to pay is expedited filing fee for personal reasons, or fees for family members.
In the Matter of East Tennessee State University (Issue Date April 18, 2011)
This involves an order upholding the denial of labor certification for an application for Permanent Employment Certification for an Assistant Professor of Spanish at Eastern Tennessee University.
In this case the Board of Alien Certification Appeals held that institutions recruiting under the basic recruitment process for professional occupations may not include job-related preferences in their advertisements for the position, but may only include the position requirements included on the institutions’ Form 9089s.
Questions and Answers
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.
(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.
University of Wisconsin Power Point on H-1B Portability: Posted with Permission of the UW International Faculty and Staff Services
Note: IHE's generally exempt from H-1B cap-See USCIS powerpoint
updated 12-16-16 mlo
CCR updated CFR links 6/18/15