Guide to Employment of Foreign Nationals
This policy seeks to provide an overview of employment and residency issues for managers, relating to employment of foreign citizens. The policy is intended to answer very specific questions frequently encountered by search committees and foreign applicants for employment within the higher education environment. It is not intended as an instructional manual for departments to manage these issues on their own. Early contact with the Chief Human Resources Officer is imperative.
Specific pay and tax issues beg early communication with the institution's payroll office. Foreign citizens accepting employment with the institution are urged to make early contact with an immigration attorney to ensure that timely and complete filings are made for visas to ensure smooth entry into and employment in the U.S. Foreign employees seeking to petition for permanent residency are again urged to secure assistance of counsel.
II. Applicable Law
- The Immigration and Nationality Act of 1952 consolidated the previous patchwork of laws into one place. As amended, the act established a worldwide ceiling of 270,000 immigrants (permanent residents) per year, with a per country limit. A system giving preference to family- and employment-based immigration was developed.
- The Refugee Act of 1980 developed a uniform national policy on refugees and asylees.
- The Immigration Marriage Fraud Amendments of 1986 placed restrictions on aliens seeking to immigrate based on marriage to a U.S. citizen or permanent resident, creating a two- (2) year conditional residence period to test the viability of the union.
- In response to national concern about illegal immigration, Congress passed the Immigration Reform and Control Act (IRCA) of 1986. IRCA has two (2) aims: To legalize undocumented workers in the U.S. at the time and to stop the future flow of illegal aliens by penalizing employers for hiring them.
- The Immigration Act of 1990 (IMMACT'90) provided a comprehensive overhaul of the immigration system. Fourteen (14) new preferences for permanent residence were established, with an emphasis on skilled labor. Employment-related visas were almost tripled, while visas for family-related immigration were held constant. To provide greater diversity in immigration populations, a green card lottery was established.
- In 1994, the North American Free Trades Agreement (NAFTA) was signed, granting special flexibility to Canadian and Mexican citizens seeking to work in the U.S. Recent changes in the H-1B Visa arena have lifted previous quotas for foreignfaculty seeking U.S. employment in institutions of higher learning.
Enforcement of Legal Requirements: Three (3) federal departments are responsible for enforcing immigration laws: Justice, State, and Labor. The U.S. Department of Justice (DOJ) contains the Immigration and Naturalization Service (INS). The INS, in turn, oversees the largely autonomous U. S. Border Patrol. The INS approves applications for immigration benefits, and regulates the entry, stay, and expulsion of
aliens. The INS also naturalizes aliens and issues certificates of citizenship. The U.S. Border Patrol monitors the nation's borders, and carries out employer sanction functions. Though they are part of the same federal agency, there are frequent turf battles between the U.S. Border Patrol and the INS District Offices. The Department of State, through consular office abroad, issues, cancels, and revokes immigrant and nonimmigrant visas for entry into the U.S., among other immigration-related functions. Decisions made by the consular officers are not reviewable by the courts or the executive branch, a sourceof frustration for aliens and college and university officials. The Department of Labor (DOL) insures that alien workers do not hurt the U.S. labor market; it forces most employers that wish to hire aliens permanently to prove that no U.S. workers are available (a process called labor certification). The DOL also performs a similar function with respect to several classes of nonimmigrant workers, and is empowered to enforce employer sanction laws.
A few of the terms and acronyms of the field follow.
- Alien: A person who is not a citizen of the U.S. by birth in the U.S., birth to a citizen parent or parents abroad, or by naturalization. Aliens can be undocumented, nonimmigrant, immigrant, or have an irregular immigration status. Although commonly the term alien is considered pejorative, as used here, an alien is merely someone who is not a permanent resident of the United States.
- Nonimmigrant: Generally, an alien who comes to the U.S. legally for a specific purpose for a limited period of time. In most cases, the individual must have a residence abroad which he or she has no intention of abandoning.
- Nonimmigrant Status: The period during which a nonimmigrant is permitted to stay in the U.S. in a particular immigrant category. If a nonimmigrant is in status, he or she is within the designated period of admission and behaves in accordance with his or her nonimmigrant category. If the alien is out of status or has no status (i.e.,is undocumented), he or she has exceeded the period of authorized admission, or is violating status (e.g., working illegally) or has entered the U.S. unlawfully.Nonimmigrant status is granted by the INS upon the alien's entry to this country or upon change of status or extension of stay. Change of status from one nonimmigrant category to another is often possible if the alien is in the U.S. and is maintaining his or her present nonimmigrant status.
- Immigrant: An alien who comes to the U.S. legally to live and work permanently. An immigrant is called a permanent resident or lawful permanent resident (LPR, or green-card holder).
Visa: Permission to enter the U.S., which is almost always obtained at a U.S. consulate abroad. A visa may be granted to either an immigrant or nonimmigrant. If the latter, the visa usually takes the form of a multicolored stamp or decal affixed to the individual's travel document. The visa does not govern the period an individual is permitted to remain in the U.S., just the period during which he or she is permitted to make applications to enter this country. Thus, an alien's visa may expire while in the U.S. with no penalty, as long as the authorized period of stay has not elapsed.
It is a policy of Longwood University to comport with all existing immigration laws in employing foreign nationals.
Aliens employed as faculty and staff on college or university campuses generally proceed along a standard path; the individual acquires temporary status and then permanent residence.
Both the most common method for temporary employment, the H-1B visa, and the permanent
residence application process are discussed here.
- Temporary Employment: For most institutions of higher education, the H-1B nonimmigrant category is the primary medium for employment of international faculty and staff, despite somewhat involved procedures. Citizens of Canada, however, can often avoid the H-1B procedures because of the U.S./Canada Free Trade Agreement, which is discussed later.
The H-1B is defined as an alien coming temporarily to the United States to perform services in a specialty occupation. A specialty occupation is one that requires the theoretical and practical application of a specialized and highly theoretical body of knowledge and the attainment of at least a bachelor's degree or equivalent in the field of specialization. Virtually all faculty or staff members meet this basic requirement.
H-1B status can be obtained in one of two ways, depending on where the potential faculty or staff member physically resides at the time of application. First, if the alien is abroad, after certain application procedures are accomplished, he or she may receive a visa at a U.S. consulate. If the alien is already in the U.S. and maintaining lawful nonimmigrant status in another visa category, he or she may usually apply for a change of status to H-1B. Even if in the U.S., however, the alien may not begin to work until the H-1B has been approved by the INS.
Under the new procedures, a Labor Condition Application (LCA) must first be filed with the U.S. DOL prior to an INS application for H-1B visa status. The employer must attest to the DOL that: 1) he or she is offering the higher of the prevailing or actual wage; 2) that he or she is offering prevailing working conditions and; 3) that there is no strike or lockout at the place of employment.
"Prevailing wage" a standard concept under prior regulatory law, is an average derived by surveying similar occupations in the area of intended employment and dividing by the number of employers surveyed. Actual wage is the wage paid to workers similarly employed by the employer giving the attestation. Wage issues to not occur with great frequency for faculty because of the relatively well-defined academic labor market.
In calculating the prevailing wage, the employer can rely on the DOL's own figures, published surveys, or other authoritative information. Only reliance on DOL's information guarantees protection against a public complaint. Likewise, the employer should keep records of how the actual wage was determined.
There are severe penalties for willful misrepresentation in an LCA. Among these are disqualification from petitioning for temporary or permanent alien employees for a period of one (1) year, which could be paralyzing for many research institutions.
Mechanically, the LCA is made by completing form ETA 9035, mailing or faxing two (2) copies of it to the Regional Certifying Officer of the DOL, which will then date-stamp and return the form to the employer. DOL does not adjudicate the LCA; it merely checks the form for completeness, accuracy, and original signatures. Unless a complaint is filed by a private party, no investigation shall be made of the facts set out in the LCA. DOL is required to return the LCA in seven (7) days or less. The employer is required to post form ETA 9035 in at least two (2) conspicuous places at the workplace for ten (10) consecutive days, together with an announcement to the public who wish to comment; any complaint to the DOL will likely be triggered by this posting.
Once the LCA process is complete, the employer may petition the INS for the H-1B visa. The petitioner for the visa is actually the institution, not the employee.
The employer must demonstrate that the job that the alien is to occupy is a specialty occupation and that the alien had the appropriate qualifications. Copies of the alien's credentials (vita, transcript, etc.) must be supplied with a cover letter from the employer describing the nature of the position, its minimum requirements, terms, and salary.
As part of the petition, the employer makes various certifications. First, the employer agrees to abide by the terms of the LCA. Second, the employer certifies that it will be liable for reasonable costs of return transportation for the alien employee should he or she be dismissed during the authorized period of H-1B status. Additionally, the employer generally certifies under penalty of perjury that allthe information contained in the petition and supporting documents is true and correct. Finally, the individual signing the petition certifies that he or she is empowered to do so by the employing organization. This certification indicates that the signatory has actual hiring authority delegated by the institution. Institutions of higher education usually delegate hiring authority to deans, department chairpersons, and directors. This raises the question of whether all people with hiring authority should be allowed to sign visa petitions. These three (3) sets of individuals, however, need not be the same. Many institutions have strict control over the signing of petitions absent such controls, individuals may sign and file petitions at will, binding the institutions to inappropriate obligations contained in the petition documents.
Trade Canada (TC) status is granted to Canadian workers admitted to the U.S. pursuant to the U.S./Canada Free Trade Agreement. TC status presents several advantages to employers and aliens, since there is not need to file papers with the INS or the DOL, and the status is granted at any port of entry upon presentation of a job offer letter and evidence of the Canadian qualifications. TC's are admitted to one- (1) year increments, with no maximum length of stay. There is no cap on the number of TC visas.
The job categories for TC status have been slightly expanded under the NAFTA. Canadians are also eligible for H-1B status.
Permanent Residence: The second step for foreign faculty and staff is to petition for permanent residence. Any alien who is a lawful permanent resident (can show a green card or a stamp in his or her passport which states, Processed for I-551: Temporary Evidence of Lawful Admission for Permanent Residence), may be employed permanently and may change employers at will. Permanent residence is often the personal goal of many international faculty and staff. It represents a commitment of institutional resources to assist the alien, since the process is undertaken under the control and at the option of the employer. Some institutions have requirements about the type of position, length of contract, and source of funding that must met in order to petition for permanent residence for the alien. Some institutions require that faculty and staff members retain outside counsel to prepare the necessary paperwork and that the alien bear all costs associated with the application for permanent residence. Any restrictions must be reasonable and
equitably enforced or they could lead to charges of discrimination and unhappiness
on the part of faculty and staff.
Permanent residence for international faculty is most often accomplished through the employer's testing the labor market and petitioning the INS. It may also be accomplished by many other means, however, including sponsorship by relative, asylum, investment, marriage to a U.S. citizen, or special legislation. The first step in obtaining permanent residence through employment is usually labor certification. In most cases, in order to hire an alien permanently, the employer must obtain a certification from the U.S. DOL that no United States workers (citizens, residents, asylees, refugees, and temporary residents) are available to fill the job.
Labor certifications for college and universities positions involving any amount of teaching receive special handling under DOL regulations. This category enables the institution to follow its own recruitment procedure and select the best-qualified person for the job. During the recruitment process, at least one advertisement must run in a professional journal. The ad must state the position title, duties, minimum qualifications, and that the job involves teaching. The labor certification must be filed within eighteen (18) months of selecting the alien. The alien must possess at minimum the qualifications stated in the ad at the time the job was offered to him or her. If one of the foregoing requirements (such as the successful applicant possessing all but the degree rather than having received a Ph.D. at the date of hire) has not been met in recruiting an alien, the special handling procedures may be repeated after the alien occupies the position. In other words, the school may select the alien again, after re-recruitment is specifically permitted by the Technical Assistance Guide of DOL.
Some institutions place restrictions on who may apply for permanent residence. For example, some colleges and universities allow only tenure-track faculty to apply,while others require only a minimum one-or-two year contract. In some cases,institutions exclude postdoctoral researchers from filing for permanent residence. These restrictions are not dictated by the INS regulations. For the purpose of labor certification, permanence only means the institution's present intent to keep the individual indefinitely. Reference need not be made to the length of the employee's contract. Any limitations on who may apply for permanent residence must be reasonable and uniformly administered.
Once the labor certification is obtained, a petition (Form I-140) to classify the alien as an immigrant must be filed with the INS. If the alien has more than two (2) years of training, education, or experience, and the position requires the same, the alien may obtain residence in most in about six (6) months to a year from the date of filing the labor certification.
If the faculty member or researcher is a cut above the ordinary, the institution may also apply under the outstanding professor or researcher category and avoid labor certification altogether. Generally in such cases, the I-140 is filed directly with the INS, together with evidence of tenure-track or equivalent job offer, proof that the individual has been engaged in research or teaching for at least three (3) years, and proof of outstanding ability. The final requirement must include at least two (2) of the following:
At present, the INS is granting these petitions rather liberally, so given the political pitfalls or labor certification, and the relative ease of assembling the foregoing documentation, foreign faculty and staff may want to explore this route.
- Other evidence of original scholarly contributions
- Evidence that the alien has judged the work of others
- Prizes or awards
- Membership in professional societies
- Other scholars' comments on the alien's work
Once the I-140 is approved, in general, if the alien has not worked illegally in the United States since January 1, 1977, has never been here illegally, entered the country with a visa, and has continuously maintained lawful status since entry, he or she may obtain residence here, by filing Form I-485, together with a fee of one hundred twenty (120) dollars.
If these qualifications are not met, the alien must go for a visa review at a U.S. consulate abroad. The visa interview and related procedures normally require out-of-country travel for only a few days. In either procedure, the alien's spouse and minor children are simultaneously eligible for residence. J aliens (a category commonly used to ensure return to the home country) subject to the two- (2) year foreign residence requirement, and undesirable aliens, must follow special waiver procedures or may be unable to obtain permanent residence.
Qualifying for a Green Card (Immigrant Visa): Foreign nationals can qualify for a green card in four (4) basic ways, among others:
- Through employment: Generally, the employer sponsors the alien for permanent residence by submitting a labor certification to the U.S. Department of Labor on his or her behalf. Once labor certification is granted, the employer must petition INS. The wait is usually twelve (12) to eighteen (18) months for skilled workers.
- Through family members: The alien applies as the close relative of a U.S. citizen or permanent resident. The wait for this type of green card may be up to seventeen (17) years, depending on the category and place of birth of the relative or sponsor.
- Through political asylum or refugee status: Foreign nationals who fear returning to their home countries because of race, religion, social group, national origin, or political opinion may apply for refugee or asylum status.
- Through the green card lottery: IMMACT'90 established a mail-in lottery to grant green cards to nationals of certain countries that have been under represented in recent immigration.
Student and Exchange Visitor Employment Issues:
- F-1 Students: Students who maintain their status (i.e., are full-time students) may work on campus and on the campuses of affiliated institutions for up to twenty (20) hours per week during the school session and full-time during vacations. A student who is out of status, however, may not work on campus until he or she has been reinstated by the INS. In the reinstatement process, students must indicate when and where they have been employed, which could expose institutions that employ students who are out of status.
Employing a student who is out of status would trigger the employer sanction provisions of IRCA, which could mean substantial penalties for the institution.
- J-1 Exchange Visitors: The exchange visitor visa classification brings students, trainees, professors, research scholars, international visitors, and medical trainees, among others, to the U.S. for a variety of educational and training purposes. Exchange visitors are sponsored by one of approximately one thousand fivehundred (1,500) agencies, organizations, and institutions approved by authorized sponsors. J-1 students may work on-campus for up to twenty (20) hours per week during the school year and forty (40) hours per week during breaks and the summer.
J-1 visa holders may work on-campus according to the stipulations of their visa category (researcher, professor, etc.). If compensation for short-term visitors is contemplated (i.e., a one-  time lecturer or performer, or a short-term researcher), they should be placed on J-1, rather than B-2 (tourist) visas since B-2 visa holders cannot be compensated. New regulations have created a special J-1 category for such visitors.
Some exchange visitors are funded by outside agencies and perform unpaid work on-campus. In such cases, it is wise to have a procedure for documenting such services to ensure that the visitor is covered by insurance in case of accident or injury. Further, recent changes in the J-1 regulation stipulate major medical coverage with a minimum of fifty thousand (50,000) dollars per incident and repatriation insurance, be purchased for exchange visitors and family members.
- Additional Information: Additional resource information may be found for students and exchange visitors in Advisor's Manual of Federal Regulations Affecting Foreign Students and Scholars (1992). Alex Bedrosian, Ed. (NAFSA: Association of International Educators), Washington D.C.
Taxes: New regulations require that all international students file an income tax return regardless of whether they have any income from U.S. sources.
- Contributions for Social Security should not be withheld from wages of nonimmigrant F-1 aliens if employment is authorized.
- Earnings from employment are usually subject to state and federal taxes. The existence of tax treaties with the student's home country and the length of time the student has been in the U.S. may influence the amount of tax owed. Many F-1 students will pay taxes at the higher nonresident rate.
J-1 Visa Holders:
- J-1's with work permission do not pay Social Security taxes.
- J-1's are subject to withholding and payment of federal and state income taxes unless they are exempt by provision of a tax treaty.
All Other Visa Types:
- Foreign nationals with work permission must pay the applicable Social Security and income taxes. Consult publications listed below.
For additional information, see Social Security Administration publication SSA 78-10056, Social Security Coverage for Foreign Students and Exchange Visitors, and Internal Revenue Service publications 515, Withholding on Nonresident Aliens and Foreign Corporations and 519, U.S. Tax Guide for Aliens.
- Additional pay guidance can be obtained from the Longwood Payroll Office.
Employment Sanctions: The Immigration Reform and Control Act of 1986 (IRCA) imposes two (2) obligations on employers:
- to hire only those aliens authorized to work and
- to keep records evidencing the right to work of all new hires after November 6, 1986. The penalties for hiring undocumented workers and/or faculty record keeping range from a $100 fine for a first offense
to jail terms for repeat violators.
Verification of employment authorization is often difficult and confusing, as some aliens are automatically entitled to work according to the terms of their visa status, while others must request permission to work. Further, aliens from a constantly changing list of countries may be eligible for temporary protected status and may have work authorization as a result. Permission to work may take the form of a letter, a passport stamp, a pink or white sheet, a yellow or white card, or a laminated card.
- Recordkeeping: Generally, within seventy-two (72) hours of hire, every employee hired must complete Form I-9 that certifies he or she has permission to work and can present documents of his or her choosing that are permitted byinstruction on the form. The employer must also sign the form, certifying that a representative of the institution has checked the employee's documents and they appear to be genuine evidence of identity and authorization to work. A citizen need only prove identity and citizenship; an alien must show identity and evidence of work authorization. The employer may not request more or different documents than those listed on the I-9 form. Copies of the documents checked by the employerneed not be kept with the I-9; however, it is probably good practice to do so. If the document providing evidence of work authorization has an expiration date, the employer must request that the employee complete an updated I-9 on the expiration
date. The employer must accept whatever combination of documents the employee proffers for the update, not necessarily an updated version of the original expiring document. The documents that the employee has the option of presenting are listed on the I-9.
Currently, the most common issue is an employer's inquiry into an individual's immigration status at the time of hire and requiring different or more documents than those that are required by law. The I-9 form has recently been revised to include a more comprehensive list of documents that may be requested of an individual seeking employment. The employer may not request documents that do not appear on the I-9, nor documents in addition to the bare requirements stated on the form. If the employer has independent knowledge that the individual applying is an unauthorized alien or that a person in his or her employment has become unauthorized, the employer may refuse initial or continued employment. The institution would be well advised to document the specific information it possesses in order to avoid a discrimination claim. Close consultation with the Human Resources Office during the recruitment and filing status is essential.
Revised and approved by the Board of Visitors, September 7, 2002.