7710 Carondelet Ave., Suite 405, St. Louis, MO 63105, ,

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1 David J. Harris Harris Legal Services LLC 7710 Carondelet Ave., Suite 405, St. Louis, MO 63105, , Missouri College and University Professional Association for Human Resources (MCUPA-HR) Conference Session: Immigration Law and the Higher Education Employee October 18, Introduction and Overview. Outline 2. Temporary employment authorization (F-1 OPT, H-1B, J-1 training, and O-1). 3. Permanent residency green card process EB-2 category for employees with advanced degrees Regular recruitment and special recruitment EB-3 category for employees with bachelor s degrees EB-1 category for outstanding teachers and researchers. 4. Practical considerations (quotas, waiting periods, timing, who pays for what parts of the process, travel, and consular processing). 5. New immigration laws. 6. Question and answer period.

2 From INA Section 101(a)(15)(H)(i)(b) An alien... who is coming temporarily to the United States to perform services... H-1B Summary in a specialty occupation described in section 214(i)(1)... who meets the requirements for the occupation specified in section 214(i)(2)... and with respect to whom the Secretary of Labor determines and certifies to the Attorney General that the intending employer has filed with the Secretary an application under section 212(n)(1). From INA Section 214(i)(1) For purposes of section 101(a)(15)(H)(i)(b)... the term "specialty occupation" means an occupation that requires-- (A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. From INA Section 214(i)(2) For purposes of section 101(a)(15)(H)(i)(b), the requirements of this paragraph, with respect to a specialty occupation, are-- (A) full state licensure to practice in the occupation, if such licensure is required to practice in the occupation, (B) completion of the degree described in paragraph (1)(B) for the occupation, or (C)(i) experience in the specialty equivalent to the completion of such degree, and (ii) recognition of expertise in the specialty through progressively responsible positions relating to the specialty. 1

3 From INA Section 212(n) - Labor condition application (1) No alien may be admitted or provided status as an H-1B nonimmigrant in an occupational classification unless the employer has filed with the Secretary of Labor an application stating the following: (A) The employer-- (i) is offering and will offer during the period of authorized employment to aliens admitted or provided status as an H-1B nonimmigrant wages that are at least-- (I) the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or (II) the prevailing wage level for the occupational classification in the area of employment, whichever is greater, based on the best information available as of the time of filing the application, and (ii) will provide working conditions for such a nonimmigrant that will not adversely affect the working conditions of workers similarly employed. (B) There is not a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment. (C) The employer, at the time of filing the application-- (i) has provided notice of the filing under this paragraph to the bargaining representative (if any) of the employer's employees in the occupational classification and area for which aliens are sought, or (ii) if there is no such bargaining representative, has provided notice of filing in occupational classification through such methods as physical posting in conspicuous locations at the place of employment or electronic notification to employees in the occupational classification for which H-1B nonimmigrants are sought. (D) The application shall contain a specification of the number of workers sought, the occupational classification in which the workers will be employed, and wage rate and conditions under which they will be employed. The employer shall make available for public examination, within one working day after the date on which an application under this paragraph is filed, at the employer's principal place of business or worksite, a copy of each such application (and such accompanying documents as are necessary). The Secretary shall compile, on a current basis, a list (by employer and by occupational classification) of the applications filed under this subsection. Such list shall include the wage rate, number of aliens sought, period of intended employment, and date of need. The Secretary shall make such list available for public examination in Washington, D.C. The Secretary of Labor shall review such an application only for completeness and obvious inaccuracies. Unless the Secretary finds that the application is incomplete or obviously inaccurate, the Secretary shall provide the certification described in section 101(a)(15)(H)(i)(b) within 7 days of the date of the filing of the application. Prepared in September 2013 by David J. Harris of Harris Legal Services LLC, St. Louis, Missouri. 2

4 Evidentiary Criteria for O-1A and O-1B Alien of Extraordinary Ability From 8 CFR Section 214.2(o)(3)(iii) Evidentiary criteria for an O-1 alien of extraordinary ability in the fields of science, education, business, or athletics. An alien of extraordinary ability in the fields of science, education, business, or athletics must demonstrate sustained national or international acclaim and recognition for achievements in the field of expertise by providing evidence of: (A) Receipt of a major, internationally recognized award, such as the Nobel Prize; or (B) At least three of the following forms of documentation: (1) Documentation of the alien's receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor; (2) Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields; (3) Published material in professional or major trade publications or major media about the alien, relating to the alien's work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation; (4) Evidence of the alien's participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought; (5) Evidence of the alien's original scientific, scholarly, or business-related contributions of major significance in the field; (6) Evidence of the alien's authorship of scholarly articles in the field, in professional journals, or other major media; (7) Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation; (8) Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence. (C) If the criteria in paragraph (o)(3)(iii) of this section do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence in order to establish the beneficiary's eligibility. From 8 CFR Section 214.2(o)(3)(iv) Evidentiary criteria for an O-1 alien of extraordinary ability in the arts. To qualify as an alien of extraordinary ability in the field of arts, the alien must be recognized as being prominent in his or her field of endeavor as demonstrated by the following: (A) Evidence that the alien has been nominated for, or has been the recipient of, significant national or international awards or prizes in the particular field such as an Academy Award, an Emmy, a Grammy, or a Director's Guild Award; or (B) At least three of the following forms of documentation: (1) Evidence that the alien has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications contracts, or endorsements; (2) Evidence that the alien has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications; (3) Evidence that the alien has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials; (4) Evidence that the alien has a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications; (5) Evidence that the alien has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged. Such testimonials must be in a form which clearly indicates the author's authority, expertise, and knowledge of the alien's achievements; or (6) Evidence that the alien has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence; or (C) If the criteria in paragraph (o)(3)(iv) of this section do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence in order to establish the beneficiary's eligibility. Prepared in September 2013 by David J. Harris of Harris Legal Services LLC, St. Louis, Missouri. 3

5 Outline of Permanent Residency Process through the Second Employment-Based (EB-2) Preference Step, item and usual processing time. 1. Application for Prevailing Wage Determination. Up to 60 days (1 to 2 months). 2. Recruitment, including advertising and screening. At least 60 days (2 months). 3. Labor Certification Application. 6 months, or 12 months if audited. 4. Immigrant Petition (I-140). 15 to 30 days (1 month) with premium processing, 4 to 5 months without premium processing Application to Adjust Status (I-485) could be filed at same time if visa number available but I-485 will not be processed until I-140 is approved. Advisable if employment authorization or advance parole travel document needed quickly. 5. Application to Adjust Status (I-485). 4 to 6 months. Submit when visa number available Includes Application for Employment Authorization (I-765) and Application for Advance Parole Travel Document (I-131). 3 months Separate Application to Adjust Status (I-485) for spouse and dependents Medical examination can be most time-consuming third party requirement so obtain exam well before anticipated filing date. Exam valid for at least one year. Birth certificates and marriage certificates also needed. Total processing time: months with I-140 premium processing and no LCA audit (20-23 with LCA audit), months without I-140 premium processing (23-27 months with LCA audit), not including time before I-485 submission if visa number not readily available. Some major costs: Newspaper print advertisements for recruitment: $1,000 or more. I-140 filing fee: $580. Premium Processing Service fee: $1,225. I-485 filing fee: $985 plus $85 biometric, total $1,070. Legal fees. This outline was prepared in September 2013 by David J. Harris of Harris Legal Services LLC, St. Louis, Missouri. Subject to change without notice. This outline is summary in nature and does not constitute professional legal advice. If advice is sought in connection with a particular matter, be sure to consult a professional who has the opportunity to consider the law, the facts, and all the factors relevant to the particular matter. 4

6 Labor Certification Outline The following outline summarizes pre-filing procedures and requirements for alien labor certification under the PERM (Program Electronic Review Management) regulations, codified at 20 CFR Part 656, particularly The following is only a summary outline. Each labor certification case requires examination to determine the exact steps to comply with regulations. These procedures and requirements are necessary to complete and file U.S. Department of Labor (DOL) Employment and Training Administration (ETA) Form 9089, Application for Permanent Employment Certification, which is the form that is electronically filed for labor certification. Documentation does not need to be filed with the form but needs to be available in the event of an audit or request for evidence. A successful application allows an employer to hire a foreign worker to work permanently in the U.S. and enables DOL to certify (a) there are no U.S. workers able, willing, qualified and available to accept the job at the prevailing wage in the area of the intended employment, and (b) employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. The DOL certification can be used in conjunction with an immigrant petition for the foreign worker. 1. Employer 1.1. Employer information 1.2. Employer contact information 1.3. Name of individual(s) responsible for interviewing and hiring job applicants; alien cannot be involved 1.4. If (a) employer is a closely held corporation or partnership in which alien has an interest, (b) there is a familial relationship with the alien, or (c) alien is one of a small number of employees, then employer must be able to demonstrate the existence of a bona fide job opportunity and provide: Business establishment documents such as articles of incorporation List of officers, titles, positions and relationship to the alien Financial history, including the total investment of each individual Name of individual(s) responsible for hiring (see 1.3) If alien is one of ten or fewer employees, documentation of any family relationship between the employees and the alien 2. Job Description and Advertisement 2.1. Title 2.2. Duties 2.3. Wage (see 3) 2.4. Location specific enough to let job applicants know any travel requirements and where applicants will likely have to reside 2.5. Requirements (see the specific requirements that follow) Must be actual minimum requirements Employer must not have hired workers with less training or experience for substantially comparable jobs If the foreign worker is already employed by the employer, then DOL will review the worker s training and experience at the time of hire Are the requirements normal to the occupation in the area and industry? If not, must be able to show business necessity Education 5

7 3. Wage 2.7. Training 2.8. Experience 2.9. Alternate combination of education and experience? Foreign educational equivalent? Foreign language requirement? If yes, must be able to show business necessity Specific skills or other requirements 3.1. Equals or exceeds the required wage (greater of actual or prevailing wage) 3.2. Determine the job s O*NET (Occupational Information Network), SOC (Standard Occupational Classification) or OES (Occupational Employment Statistics) code 3.3. Obtain prevailing wage determination before starting recruitment efforts 3.4. Does not have to be advertised 4. Recruitment Process 4.1. Timing: More than 30 days and less than 180 days before filing (except one of the three additional recruitment steps for professionals may be within 30 days) 4.2. Notice of filing (a) posted 10 consecutive federal working days in conspicuous location or (b) given to bargaining representative for workers in the occupation 4.3. Job order for at least 30 days with the State Workforce Agency (SWA) serving the area of intended employment 4.4. Advertisements for two Sundays in newspaper of general circulation (or edition of widest circulation if no Sunday edition) (or if job requires experience and an advanced degree, and a professional journal normally would be used to advertise, then ad in the professional journal can substitute for one Sunday ad) 4.5. Three additional recruitment steps for professional jobs, from the following: Employer s web site Job search web site other than the employer s. Web pages generated in conjunction with newspaper advertisements qualify Local or ethnic newspapers Radio or television Trade or professional organizations, including newsletters or journals Job fairs On-campus recruiting Campus placement offices Private employment firms Employee referral program with incentives 4.6. Optional special procedures for college and university teachers 4.7. Layoffs in the occupation or related occupation in previous six months? If yes, then must notify and consider laid off U.S. workers. 5. Recruitment report. Keep records and prepare report if responses received to recruitment efforts. The report must describe steps taken, results achieved and lawful job-related reasons for rejecting U.S. workers. This outline was prepared in September 2013 by David J. Harris of Harris Legal Services LLC, St. Louis, Missouri. Subject to change without notice. This outline is summary in nature and does not constitute professional legal advice. If advice is sought in connection with a particular certification, be sure to consult a professional who has the opportunity to consider the law, the facts, and all the factors relevant to the particular certification. 6

8 Optional special recruitment and documentation procedures for college and university teachers From 20 CFR Section (a) Filing requirements. Applications for certification of employment of college and university teachers must be filed by submitting a completed Application for Permanent Employment Certification form to the appropriate ETA application processing center. (b) Recruitment. The employer may recruit for college and university teachers under or must be able to document the alien was selected for the job opportunity in a competitive recruitment and selection process through which the alien was found to be more qualified than any of the United States workers who applied for the job. For purposes of this paragraph (b), documentation of the "competitive recruitment and selection process" must include: (1) A statement, signed by an official who has actual hiring authority from the employer outlining in detail the complete recruitment procedures undertaken; and which must set forth: (i) The total number of applicants for the job opportunity; (ii) The specific lawful job-related reasons why the alien is more qualified than each U.S. worker who applied for the job; and (2) A final report of the faculty, student, and/or administrative body making the recommendation or selection of the alien, at the completion of the competitive recruitment and selection process; (3) A copy of at least one advertisement for the job opportunity placed in a national professional journal, giving the name and the date(s) of publication; and which states the job title, duties, and requirements; (4) Evidence of all other recruitment sources utilized; and (5) A written statement attesting to the degree of the alien's educational or professional qualifications and academic achievements. (c) Time limit for filing. Applications for permanent alien labor certification for job opportunities as college and university teachers must be filed within 18 months after a selection is made pursuant to a competitive recruitment and selection process. (d) Alternative procedure. An employer that can not or does not choose to satisfy the special recruitment procedures for a college or university teacher under this section may avail itself of the basic process at An employer that files for certification of employment of college and university teachers under or this section must be able to document, if requested by the Certifying Officer, in accordance with (a)(2)(ii), the alien was found to be more qualified than each U.S. worker who applied for the job opportunity. Prepared in September 2013 by David J. Harris of Harris Legal Services LLC, St. Louis, Missouri. 7

9 Evidentiary Criteria for EB-1 Applicants - Outstanding Professors and Researchers From 8 CFR Section 204.5(i) (1) Any United States employer desiring and intending to employ a professor or researcher who is outstanding in an academic field under section 203(b)(1)(B) of the Act may file an I-140 visa petition for such classification. (2) Definitions. As used in this section: Academic field means a body of specialized knowledge offered for study at an accredited United States university or institution of higher education. Permanent, in reference to a research position, means either tenured, tenure-track, or for a term of indefinite or unlimited duration, and in which the employee will ordinarily have an expectation of continued employment unless there is good cause for termination. (3) Initial evidence. A petition for an outstanding professor or researcher must be accompanied by: (i) Evidence that the professor or researcher is recognized internationally as outstanding in the academic field specified in the petition. Such evidence shall consist of at least two of the following: (A) Documentation of the alien's receipt of major prizes or awards for outstanding achievement in the academic field; (B) Documentation of the alien's membership in associations in the academic field which require outstanding achievements of their members; (C) Published material in professional publications written by others about the alien's work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation; (D) Evidence of the alien's participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field; (E) Evidence of the alien's original scientific or scholarly research contributions to the academic field; or (F) Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field; (ii) Evidence that the alien has at least three years of experience in teaching and/or research in the academic field. Experience in teaching or research while working on an advanced degree will only be acceptable if the alien has acquired the degree, and if the teaching duties were such that he or she had full responsibility for the class taught or if the research conducted toward the degree has been recognized within the academic field as outstanding. Evidence of teaching and/or research experience shall be in the form of letter(s) from current or former employer(s) and shall include the name, address, and title of the writer, and a specific description of the duties performed by the alien; and (iii) An offer of employment from a prospective United States employer. A labor certification is not required for this classification. The offer of employment shall be in the form of a letter from: (A) A United States university or institution of higher learning offering the alien a tenured or tenuretrack teaching position in the alien's academic field; (B) A United States university or institution of higher learning offering the alien a permanent research position in the alien's academic field; or (C) A department, division, or institute of a private employer offering the alien a permanent research position in the alien's academic field. The department, division, or institute must demonstrate that it employs at least three persons full-time in research positions, and that it has achieved documented accomplishments in an academic field. Prepared in September 2013 by David J. Harris of Harris Legal Services LLC, St. Louis, Missouri. 8