Employment Immigration Law: An Overview

This section summarizes immigration law as it applies to UW System institutions in relation to employment of non-U.S. nationals, i.e., "aliens." Immigration law is a complex system of laws, regulations and procedures that are implemented by several federal agencies, including the U.S. Citizenship and Immigration Services (USCIS) and the Department of Labor (DOL).

Immigration law governs who may legally enter, remain in and become employed in the United States. In dealing with the immigration law and procedures, it is important to note that Congress and the federal agencies have total and complete authority over immigration law. State governments have virtually no power, control or influence. Failure to comply with the law and procedures may have serious consequences for the individual seeking entry to and permission to work in the United States and financial penalties for the employer/institution.

Each UW System institution has someone in its human resources office who provides assistance in handling visa issues and processing the visa applications and petitions. In addition, Tom Stafford in the UW System Office of General Counsel provides back-up and additional guidance to the System institutions.

Alien Status
An "alien" is the proper term describing a non-citizen and non-national of the U.S. There are different categories of aliens: resident and nonresident, immigrant and nonimmigrant, documented and undocumented (illegal).

An alien must have lawfully entered the U.S. and have a visa authorizing employment. Although it is not permissible to ask job applicants whether they are U.S. citizens, you may inquire whether they have work authorization. In general, the individual is responsible for obtaining necessary work authorization. However, many work authorization visas are employer-based, requiring the UW institution, as the employer, to apply for the appropriate visa. Visas authorizing employment and the UW institutions' involvement in obtaining the visas are described below.

An alien may not begin employment until the appropriate visa has been granted; typically application for the visa does NOT grant work authorization. Employment without the proper visa could result in fines for the employer and has serious consequences for the alien's ability to eventually obtain a visa and permanent residency.

Immigrant v. Nonimmigrant Visas
There are two types of visas: immigrant and nonimmigrant. Nonimmigrant visas are typically for aliens who are in the U.S. on a temporary basis, such as tourists and temporary business visitors. Visa types H, J, O and TN are the nonimmigrant visas that are most frequently used for aliens employed at UW institutions. The employing UW institution, not the individuals, must apply for H, J, O and TN visas. These visas are linked to a particular job with a particular employer.

In addition, students on F-1 (nonimmigrant) visas are permitted to work part-time jobs on campus for no more than 20 hours per week.

Immigrant visas permit the holders to stay in the United States permanently and to apply for citizenship. The immigrant visa category most frequently used at UW institutions is that of permanent resident, also known as "green card." This status permits the alien to remain in the U.S. indefinitely and is not linked to a particular job or to a particular employer. Non-citizen employees who wish to remain in the United States indefinitely and to apply for other jobs may find this visa highly desirable.

In some cases, it may be necessary for the UW institution to pursue a permanent residence application on behalf of the employee. Institutions should adopt policies for determining when they will support and submit petitions for permanent residency.

There are two situations in which a UW institution must prepare and file the visa application, assuming the individual does not already have work authorization:

o When the necessary visa is temporary and employment based. These visas are H, O, and J.
o When an employment-based permanent residence visa is sought.

UW institutions may not sign visa application documents prepared by non-University attorneys. Assistance in preparing employment based visa applications is provided by each institution's visa specialist and the UW System Office of General Counsel.

H-1B Visa
Many alien scientists, researchers and faculty members (both probationary and tenured) are initially employed on H-1B visas. An H-1B visa classification may be granted for work in a "specialty occupation," i.e., one requiring theoretical and practical application of highly specialized knowledge.

The H-1B visa requirements are:
1) The individual must have a bachelor's degree or higher in the specific field;
2) The individual may be employed in H-1B status for a maximum limit of six years. Permanent residency must be obtained for employment beyond the six years.
3) The individual must be a temporary worker; however, the position itself can be a permanent one. Unlike other temporary, non-immigrant visas, the holder of a H-1B visa may intend to live permanently in the U.S. and may apply for permanent residency while in H-1B status.
4) If the institution plans in the future to submit an employment based permanent residence petition for the H-1B visa holder, it is important to begin the first step of that process within 18 months of the original offer for the position.

Initial H-1B visas are granted for up to three years and the H-1B status is limited to a total of six years for each individual, not for each job. Therefore, if the applicant has already spent three years elsewhere in H-1B authorized employment, he/she will only have three remaining years at your institution. The H-1B visa may be extended for one additional year if an application for permanent residence (i.e., "adjustment of status") has been filed and is pending.

· The H-1B visa holder's spouse and dependents are not authorized for employment with their H-4 visas.
· The employer must pay for return transportation to the individual's home country if the employer terminates the employment before the expiration of the employment period covered by the visa.
· H-1B status applies only to a specific position, with specific title, salary, duties and dates of employment. Amendments must be filed for "material," i.e., not insignificant, changes in employment, even with the same employer.

To obtain the H-1B visa, the institution must show that:
· There is a temporary job available in a specialty occupation;
· The position will pay a salary at least the level of the prevailing wage in the field, and;
· The individual has the credentials and skills for the occupation.

The necessary steps for the institution are:
· Obtain prevailing wage certification from the Wisconsin Department of Workforce Development.
· Obtain a labor condition application certification from the Department of Labor. On this form, the institution attests to the terms of employment and agrees to abide by the listed labor conditions.
· Obtain approval from the U.S. Citizenship and Immigration Services for the H-1B petition. Supporting documents must show that the position is a specialty occupation and the individual possesses the necessary degree and credentials.

Employment may not begin or continue until USCIS approval has been received, unless the H-1B application is for an extension or amendment of an existing H-1B visa.

Regular processing of the H-1B visa application can take approximately 4-5 months. USCIS also provides expedited processing (15 day turn around for adjudication) upon payment of a $1,000 processing fee. This fee must be paid by the employing institution and cannot be paid by the individual.

TN Visa
A TN visa is available to citizens of Canada and Mexico, under the North American Free Trade Agreement (NAFTA). TN status is employer and job specific. The requirements for a TN visa are:
· The applicant must hold the appropriate level credentials; and
· The position must qualify as a professional level occupation listed on Schedule 2 of the NAFTA treaty. Schedule 2 includes college and university-level teachers, scientists, librarians, and research assistants, among others.

Unlike the H-1B visa, there is no maximum number of years that a person may remain in the U.S. in TN status.

Drawbacks to the TN visa
· TN visas must be renewed annually.
· TN visa holders may not intend to establish permanent residence in the U.S. and may not apply for a green card. TN visas are not available for individuals in tenure-track or tenured faculty positions.
· A change in position requires a new TN petition.
· Spouses and dependents of the TN visa holder are granted TD visas and are not authorized for employment.

To obtain the TN visa
· For Canadian citizens, the employee, not the employer, files the petition. The employing department needs to give the individual a letter of offer on letterhead, with an original signature. The letter must include the position title, salary, job responsibilities and dates of employment up to one year. If the specific job title does not appear on Schedule 2 of the NAFTA treaty, it is necessary to describe in detail how the job is similar to one of the listed occupations.

The individual completes an application. Upon entry to the U.S., he/she presents it along with the letter from the institution and evidence of his/her credentials, including a C.V., copy of diploma, transcript, etc.

· For Mexican citizens, the employee must apply for a TN visa at a U.S. consulate in Mexico. Note that unlike Canadians, Mexicans cannot process their TN applications at ports of entry. However, prior to January 1, 2004, the TN application process for Mexicans was much more complicated and almost identical to the H-1B visa process. Because the changes to the Mexican TN application process made effective January 1, 2004, have simplified the process, it is probable that Mexican citizens will make increased use of the TN visa.

O Visa
The O-1 nonimmigrant temporary status visa is for individuals of extraordinary ability in the sciences, arts, education, business or athletics and who have risen to the very top of their fields. The UW institution must apply for the visa. There are very high standards for the individual's qualifications and the documentary requirements are burdensome. The application must document sustained national or international acclaim and recognition for achievements in the field of expertise.

O visas can be granted for an initial period of up to three years, and annual extensions can be granted. Unlike H-1B visas, there is no six-year limitation.

O visa holders may apply for permanent residence; however, the visa is a temporary status and is not appropriate for permanent positions such as tenured professors. Like the H-1B visas, the employer must pay for the return transportation if the employment is terminated prior to the approved period of the O-1 status.

Dependents of the O-1 visa holder may be employed in the United States.

Documentation for the O-1 visa is complicated and rigorous. See your institution's visa specialist for assistance.

Permanent Residence
Permanent residence status permits a non-citizen to remain in the United States permanently. Permanent residence may be obtained through family based petitions, refugee or asylee status and employment based petitions, among other ways. Permanent residence petitions can be filed while an individual is living abroad, or while living in the United States. The application process may take an extended period of time; therefore, if an employee is on an H-1B visa, the institution should not wait until the end of the sixth (and last) year of employment to begin the permanent residency process.

Although there are five categories for granting permanent residence based on employment skills, two of those categories are used most frequently for UW System employees. These are the "outstanding professor or researcher" category of EB-1 Priority workers and "members of professions holding advanced degrees" category of EB-2. These two permanent residency processes require the institution to file the necessary paperwork.

Individuals may also obtain permanent residency under categories that do not require institutional involvement. However, these categories are not necessarily appropriate to all foreign nationals, depending on their circumstances.

Before making a decision on which category to use for permanent residency, the department should contact the institution's visa specialist. The individual may wish to consult with an immigration lawyer; however, the lawyer may NOT represent the UW institution in the process, nor may the lawyer prepare documents for the institution to sign.

Outstanding professor or researcher category
The requirements for this category are:
· An offer of permanent employment, such as a tenured or tenure-track position. Proof of indefinite grant funding is not required.
· Three years of teaching and/or research experience in the academic field, beyond the Ph.D.
· International recognition as being outstanding. Specific documentary requirements are required. These include, but are not limited to, major prizes or awards, membership in associations that require outstanding achievements, published materials, evidence of the scholar's participation in judging the work of others, evidence of research contributions.

Documentation must be presented in a careful and thorough manner. The process involves more steps than listed here. Contact your institution's visa specialist for direction and assistance.

The EB-2 process
This process is lengthy and involves two or three government agencies in a precisely orchestrated order; the entire process may take more than one year.

The Department of Labor (through the Wisconsin Department of Workforce Development and the Chicago Regional U.S. Department of Labor) will examine an application for Labor Certification to make sure the U.S. workforce is protected and that the individual was the best-qualified person for the position, as compared to the other candidates. Extensive documentation of the recruitment process for the position is necessary. In some cases, a new, full-scale search must be conducted.

Although the procedures may seem onerous, in comparison to other professions, the standards for university and college teaching positions are less strenuous. To receive these special handling procedures, the Labor Certification application must be filed within 18 months of the date of the initial offer letter. If this deadline is not met, a completely new, full-scale search must be conducted.

After the Labor Certification is granted, the U.S. Citizenship and Immigration Services evaluates the applicant's qualifications for the specific preference category. The employing institution submits this documentation.

Finally, the foreign scholar (NOT the institution) must apply for immigrant status from the USCIS.

Documentation at all steps must be presented in a careful and thorough manner. The process involves more steps than listed here. Contact your institution's visa specialist for direction and assistance.