SCOPE: FACULTY AND STAFF
Issued: 6/1/09
1. Purpose:
The purpose of this policy is to provide information and guidelines related to filing petitions for Federal employment authorization of non-immigrants. Non-immigrants make a great contribution to the teaching and research mission of 91ÖÆƬ³§. Therefore, departments and other university offices in which these individuals are employed or where proposed employment is identified must be aware of University procedures for processing these petitions. Provided below is a general overview of approved procedures for filing these petitions. Deans and department heads should ensure that individuals in their colleges or areas who are involved in hiring employees or processing related paperwork are provided with this information.
1.1 In order to comply with the provisions of the Immigration Reform and Control Act, 91ÖÆƬ³§ may not employ individuals who are not authorized to work in the United States.
1.2 Petitions submitted on behalf of Non-immigrants must fully comply with Federal laws and regulations of the Department of Labor (DOL) and The Department of Homeland Security (DHS).
1.3 Petitions for Federal employment authorization must serve to support the teaching and research mission of the University.
1.4 In good faith, 91ÖÆƬ³§ is committed to filing temporary and when appropriate permanent employment authorization petitions on behalf of all full time tenured and tenure-track faculty.
1.5 Requests for temporary and permanent employment authorization for other faculty positions and for staff positions shall be evaluated on a case-by-case basis. Part-time positions are not eligible for petition-based employment authorization.
1.6 The Human Resources Office on behalf of 91ÖÆƬ³§ facilitates the preparation and filing of petitions for temporary employment authorization for non-immigrants or recommends cases for processing by board certified immigration attorneys. The office does not provide legal advice or assist in negotiations of salary, conditions of employment or payment of fees for filing petitions.
1.7 Board-certified immigration attorney’s working on behalf of 91ÖÆƬ³§ may facilitate the preparation and filing of petitions for permanent employment authorization for non-immigrants. These attorneys are board-certified to practice immigration law and have been authorized by the Texas State Attorney General’s Office to assist in the filing of petitions on behalf of the University as the need arises. This authorization is maintained through the Texas State University System Office. Utilization of outside attorneys is based on the type, demand and complexity of petitions or the availability of resources.
2. Definitions:
2.1 Petition: The completed appropriate U. S. government form or forms and required supporting documentation, signatures, and associated fees submitted to the appropriate agency of the DHS for the purpose of employing a non-immigrant. 91ÖÆƬ³§ is considered the petitioner for all employment-based authorization petitions submitted by the University.
2.2 Non-immigrant: A person who has been lawfully admitted to the United States for a temporary period and for a specific purpose. Non-immigrants may be employed in the U.S. only if permission to work has been authorized by the DHS.
2.3 Immigrant or Permanent Resident: A person who has been lawfully admitted to the United States to reside and work unrestricted on a permanent basis; sometimes referred to as lawful permanent resident, resident alien, or green card holder.
2.4 Beneficiary: The employee or prospective employee of 91ÖÆƬ³§ for whom the University is filing a petition.
2.5 Department Chair or Representative: An employee of 91ÖÆƬ³§ who is appointed by his or her department and is responsible for completing forms and compiling the supporting documentation and any other required forms and documentation and forwarding them to the preparer.
2.6 Preparer: The 91ÖÆƬ³§ employee or immigration attorney assigned to the case that complies and submits petitions to the appropriate government offices.
2.7 H-1B: A non-immigrant category for the temporary employment of a non-immigrant who performs services in a ―specialty occupation‖ by a specific employer. A specialty occupation requires the theoretical and practical application of a body of specialized knowledge and a bachelor’s degree or the equivalent in the specific specialty. H-1B employment authorization is granted by petitioning the U.S. Citizenship and Immigration Services (USCIS), an agency of DHS, by submission of Form I-129.
2.8 Prevailing Wage: The prevailing wage rate is defined as the average wage paid to similarly employed workers in the requested occupation in the area of intended employment as determined by the Texas Workforce Agency.
2.9 Labor Condition Application: The Form ETA 9035E Labor Condition Application (LCA) is required by the Department of Labor for all H-1B petitions and includes attestations regarding hiring practice, employment notification and prevailing wage requirements.
2.10 Legal Permanent Residency: Legal Permanent Residency (LPR) is the process whereby a nonimmigrant becomes an immigrant and receives permanent resident status to live and work in the U.S. For employment-based LPR, A Form I-140 petition is submitted by the employer to request an immigrant visa on behalf of a beneficiary. Upon approval of the I-140 petition, the beneficiary submits a Form I-485 application to adjust their status from non-immigrant to immigrant.
2.11 Permanent Employment Certification: The Form ETA 9089 Permanent Employment Certification (PERM) is required by the Department of Labor as the first step for most employment-based immigrant visa petitions. If the certification involves a job offer as a college or university professor, the employer shall submit documentation to show clearly that the employer selected the nonimmigrant for the job opportunity pursuant to a competitive recruitment and selection process, through which that person was found to be the most qualified candidate. Specific advertising and recruitment steps are necessary for PERM. The requirements for selection include minimum education, experience, specialized knowledge, etc., necessary for the job, and a salary that is considered at ―prevailing wage‖ for the position.
2.12 Selection Date: For the purpose of filing an LCA for a prospective faculty member, the selection date is the date the candidate is approved for hire by the Texas State University System Board of Regents. PERM certifications must be submitted to the DOL within 18 months of selection date.
2.13 91ÖÆƬ³§ does not submit petitions for part-time H1-B workers due to the complexity involved in monitoring requirements for part time H1B workers.
2.14 The H-1B status may not be used for the post doctoral positions that will be employed part time. F-1 (post doctoral student or J-1 (Exchange Visitor) status are used for these positions. Applications for changing from one status to another can take several months, so planning ahead is crucial if a change of status will be necessary in order to employ a part-time doctoral candidate. Contact the International Student Services office for assistance.
3. General Information Related To Petition Processing
3.1 Prior to making the request for the filing of a petition, the Department Chair should ensure that he/she understands 91ÖÆƬ³§ employment policies and procedures related to the prospective position that is to be filled. Failure to carefully follow 91ÖÆƬ³§ employment policies can jeopardize the process of filing a petition.
3.2 The department proposing to hire the non-immigrant should discuss the issue of work authorization with the prospective employee early in the process. For appropriate guidance to ensure the protection of a job applicant’s rights, consultation with Human Resources is advised.
3.3 When a non-immigrant candidate has been selected for employment, the Department Chair unit should notify the Human Resources Office of their intent to hire a non-immigrant and have the finalist complete the Non-Immigrant Questionnaire and submit it to Human Resources.
3.4 Upon notice and receipt of the Non-Immigrant Questionnaire, Human Resources will forward information to the immigration attorney where it is determined if the prospective non-immigrant is employable in their current status or, if not, determines the appropriate employment authorization petition necessary for employment.
3.5 If an outside attorney is recommended by Human Resources, then the Human Resources Office will contact the attorney to initiate the process. Copies of all correspondence between the beneficiary and the attorney should be sent to Human Resources
3.6 Upon notice and receipt of the required forms, the Department Chair completes and returns the forms to the preparer. Once the petition and required documents are complete, the preparer forwards them to Human Resources for review.
3.7 Filing a petition does not guarantee that the petition will be approved. After a petition is submitted, the approval of a petition and processing is solely determined by DHS. Hiring departments must be aware of expiring work authorization dates.
3.8 Human Resources will inform the beneficiary’s department within 90, 60 and 30 days of the expiration of the beneficiary’s work authorization so that steps can be taken to file an extension of the work authorization, if necessary.
3.9 The Department Chair will notify the Human Resources office upon the termination of any H-1B employees so that Human Resources can inform USCIS as required by law.
4. H-1B Temporary Worker Petitions for Employment of Non-Immigrants
4.1 This section of the policy regarding H1-B will be effective 9/1/09.
4.2 The preparer on behalf of the University files petitions related to H-1B Temporary Worker employment authorization using Form I-129. Form ETA-9035E Labor Condition Application, and other supporting documentation.
4.3 The beneficiary may not complete forms I-129 or ETA-9035E.
4.4 For H-1B petition, the hiring unit: 1) must pay the prevailing wage for the position; 2) must certify that funding is available for the period of employment requested and 3) is responsible for the return transportation if the non-immigrant is terminated for any reason.
5. Permanent Resident Petitions
5.1 The preparer on behalf of the beneficiary files petitions related to Legal Permanent Residency (LPR) using Form I-140 and the associated Form ETA-9089 Labor Certification Application and other associates forms.
5.2 The beneficiary may not complete Form I-140.
5.3 The University, as the employer, may not seek or receive payment ―of any kind for any activity relating to obtaining permanent labor certification, including payment of the employer’s attorney’s fees‖ per Chapter V, Title 20, Code of Federal Regulations—Part 656 Labor Certification Process for Permanent Employment of Aliens in the United States. §656.12 improper commerce and payment.
5.4 The appropriate offices must review job postings that are related to filing the petition. Human Resources should review and approve all faculty and staff position postings.
5.5 Following the submission of the I-140, the beneficiary may apply for adjustment of status using form I-485 and the beneficiary may also apply for a non-immigrant visa at a U. S. embassy or consulate. 91ÖÆƬ³§ is not responsible for processing the adjustment of status or immigrant visa applications. The beneficiary may wish to seek assistance from a board-certified immigration attorney for these applications.
5.6 For LPR petitions, the hiring unit must pay, or be prepared to pay, the prevailing wage for the position.
5.7 The hiring department should make requests to LPR petitions after 12 months of progress toward tenure.
6. Payment of Fees Related to Filing Petitions
6.1 91ÖÆƬ³§ pays fees related to filing petitions for the beneficiary as the cost of doing business. This includes the cost of premium processing (See 6.7), if premium processing is necessary. The 91ÖÆƬ³§ college, department or office hiring the prospective employee is responsible for costs related to the filing of petitions.
6.2 The beneficiary pays fees related to filing petitions for the beneficiary’s dependents.
6.3 The beneficiary pays fees related to filing Form I-485.
6.4 The University office or department responsible for paying for petition related fees must request the Accounting Office at 91ÖÆƬ³§ to create checks as required for payment of fees related to a petition. The office or department that is paying for fees related to filing the LCA or petition must forward the checks as instructed to Human Resources.
6.5 The hiring department should inform the prospective employee regarding the payment of fees.
6.6 The beneficiary pays attorney fees, except for those instances indicated in 6.1.
6.7 Because of processing backlogs and unpredictability of processing times at DHS service centers, DHS offers premium for expedited processing of H-1B petitions. The cost of this service, as of 2008, is an additional $1000. Although DHS indicates that approval of the petition occurs within 15 days of receipt, the application process may take longer because of the complexity of the process and Department of Labor requirements.
7. Petition Recordkeeping
7.1 Files related to the filing of petitions are housed in the Human Resources Office.
7.2 Public access files are housed in the Human Resources Office.
8. Applicable Federal Rules and Regulations
8.1 Federal Register, Vol. 69, No. 247, Monday, December 27, 2004, Rules and Regulations, Page 77387, §656.1 and §656.2.
8.2 Federal Register, Vol. 72, No. 95, Thursday, May 17, 2007, Rules and Regulations, page 27945, §656.12.