518 Faculty and Staff Immigration Assistance Procedure
Approval: Approved by the President on April 27, 2006
Authority: Board of Governors Policy 1.2.040
Responsibility: Director of Human Resources/General Counsel
The university is committed to recruiting and retaining qualified faculty and staff members. Foreign employees offer a tremendous resource in terms of knowledge, experience and diversity. The university has a long-standing tradition of hiring highly qualified foreign faculty and staff members.
The following procedure is established to provide a consistent framework for assisting current or potential foreign faculty and support staff members attain or maintain a legal immigrant or non-immigrant status while working for the university.
The two most common immigration issues are H-1B Non-Immigrant Petitions and Permanent Residency Petitions. This procedure addresses each of these immigration issues.
Procedure for H-1B Petitions
The university will assist all non-immigrant faculty and staff members with the H-1B petition process. Fundamentally, the H-1B visa category allows the university to employ a foreign employee on a temporary basis for a specified amount of time (usually three to six years) in a specifically approved position.
The Office of Human Resources will serve as the focal point for all H-1B visa issues.
Each department is responsible for notifying the Office of Human Resources as soon as it becomes aware of a hire or potential hire concerning a foreign employee.
A Human Resources representative will meet with the employee as soon as practical to ascertain his or her immigration status and develop a petition strategy if necessary. There are many immigration status scenarios and each situation must be evaluated on its own merit.
If it is determined that the employee requires an H-1B visa to work for the university, the university will submit an H-1B petition on behalf of the employee. The university will bear the cost of the H-1B petition processing and filing fees. Fees will be paid by the applicable department.
The university will not pay the "premium processing" fee for H-1B petitions unless doing so is in the best interest of the university. The employee may elect to pay the premium processing fee "out of pocket" but must coordinate his or her efforts with the Office of Human Resources. The university does not assume any liability for the premium processing fee if the petition is disapproved.
H-1B extensions are processed in the same manner as above.
Permanent Residency Process
There are several different types of employer-sponsored permanent residency petitions. The most common is called "labor certification." In most cases, faculty members meet eligibility criteria required for labor certification. Non-faculty, professional positions normally fall into categories which apply higher standards of eligibility criteria and do not readily meet requirements for labor certification.
1. Professional positions (non-faculty)
Foreign employees hired in the "professional occupation" category through a local or regional search are typically not good candidates for labor certification. If a local or regional search was initially conducted for the position, this is an indication that there were qualified workers available in the labor market at the time the foreign employee was hired. "Professional occupation" positions usually require new recruitment for the labor certification phase of the permanent residency process. If there were US workers available at the time of hire there will likely be US workers available at the time of the new recruitment. For this reason, the university would not generally provide assistance or support for professional occupations. An exception will be if a labor market shortage develops or it is determined that the position will be hard-to-fill in the event new recruitment is done. In such an event, the university's general counsel will request documentation from the hiring manager and will evaluate on a case by case basis whether the university will support the permanent residency process.
If a national search was conducted for a professional position, there is a greater likelihood that labor certification will be successful. In such an event, however, the university's general counsel will request documentation from the hiring manager to evaluate whether it will support the permanent residency process, and the procedures described in Section 3 below will apply.
The Office of the General Counsel will serve as the focal point for all permanent residency issues.
2. Faculty positions
Faculty members with classroom teaching duties may file for labor certification within 18 months of their selection date provided a print advertisement was placed in a national professional journal and a valid search was conducted.
The decision to pursue permanent residency in the United States is an individual decision. However, because there are legally mandated deadlines for applying, the university will encourage faculty members to evaluate their options soon after they begin employment with the university.
3. Procedures for requesting assistance with permanent residency
Again, the decision to apply for permanent residency is entirely an individual decision by each foreign employee. The initiation of the permanent residency process is the responsibility of the foreign employee. However, due to a constantly changing immigration system, strict procedural and eligibility requirements, and the legal complexities associated with immigration, the university recognizes a mutual value in assisting foreign employees through this process. Therefore, the university will provide assistance to foreign employees in certain situations.
a. Once the university receives an approved H-1B Petition, a foreign employee hired through a national search may request in writing to the Office of General Counsel that the university provide legal assistance in helping him or her obtain permanent residency. Due to strict time restrictions regarding the initial search for the position, the foreign employee must submit his or her request for legal assistance within thirty (30) calendar days of being notified of his or her H-1B approval. For faculty members, because the labor certification must be filed within eighteen (18) months of the selection date, it is critical that the process be initiated soon after the commencement of employment with the university.
b. If approved, the university will provide legal assistance as well as any necessary internal support for the foreign employee's permanent residency petition. The Office of the General Councel shall provide an approval letter which lists the scope and limitations of the assistance to be provided.
c. A disapproved request for legal assistance may be appealed to the president of the university within ten (10) working days. There is no appeal beyond this level.
d. Legal assistance will normally take the form of hiring an outside attorney, approved by the general counsel, to process the permanent residency paperwork on behalf of the foreign employee. However, the general counsel may opt to use in-house or alternative resources at his or her discretion. General counsel will communicate directly with outside legal counsel and no decisions regarding the employee's permanent residence application shall be made without the approval of UCM's general counsel.
e. As a condition of the university bearing costs for I-140 Immigration Petitions for Worker and/or I-485 Application to Adjust Status to Permanent Residence the foreign employee shall sign a service agreement indicating he or she will be responsible for reimbursing the university for the aforementioned costs if he or she leaves the university prior to a time specified in the service agreement.
f. Any and all legal fees, filing fees or related expenses for family member(s) will not be paid for by the university; in addition legal costs incurred for personal reasons not required for obtaining permanent residence (i.e. advance parole travel documentation) will not be paid for by the university. The foreign employee shall be responsible for additional costs (such as the required medical exam, photos and credential evaluations, if required).
4. Other avenues of permanent residency
In addition to the labor certification, foreign employees may be eligible to seek permanent residency through marriage to a US citizen or through other qualifying family relationships. Foreign nationals may also seek permanent residency on the basis of employment in the US through venues other than labor certification (including outstanding professors or researchers, extraordinary ability, or national interest petitions). The university encourages individuals who think they may qualify for permanent residency on some basis other than labor certification to discuss their options with an immigration attorney. Whether the university will provide support for a particular foreign employee will be decided on a case-by-case basis.