HIRING and PAYING FOREIGN NATIONALS Paul Collier The Office of International Programs Matthew Wills Department of Business & Financial Services
Topics Federal agencies involved in the U.S. immigration system Immigration statuses frequently encountered at CSU Initiating immigration processing for foreign nationals hired by your department 2
Federal agencies involved with immigration Department of Homeland Security U.S. Citizenship & Immigration Services (USCIS) Typically involved with adjudicating requests for a change/extension of status or other immigration benefits for individuals already in the U.S. U.S. Immigration & Customs Enforcement (ICE) Responsibilities include monitoring foreign nationals in the U.S. and tracking down individuals out of status Administers SEVIS (Student & Exchange Visitor Information System) U.S. Customs & Border Protection (CBP) Agents at the ports of entry that determine admissibility and confer a particular immigration status upon foreign nationals entering the country. Immigration status is designated on Form I-94. Agents also determine length of authorized stay. 3
Federal agencies involved with immigration Department of State Conducts visa interviews at U.S. Embassies and Consulates abroad Issues visas (visa stamp in the passport) enabling foreign nationals to enter the U.S. Visas are sometimes issued only after a security check, and sometimes only after USCIS has approved a petition for a specific status. 4
Federal agencies involved with immigration Department of Labor Issues prevailing wage determinations (part of the H-1B process & permanent residence process) Reviews Labor Condition Applications (part of the H-1B process) Reviews Labor Certification Applications (part of the permanent residence process) All this falls under the mission of the Dept of Labor which is to protect jobs for U.S. workers, protect the wages and working conditions of U.S. workers, and ensuring foreign workers are not exploited. 5
Terminology Visa A visa is a physical stamp placed in an individual s passport by the Department of State at a U.S. Embassy or Consulate outside the U.S. A visa allows the holder to enter the U.S. (sometimes with other accompanying documentation). Status Status is the immigration classification given when an individual enters the U.S. In many cases, it is possible to change status in the U.S. (with approval from USCIS) without getting a new visa until the next trip abroad. 6
Immigration statuses commonly encountered at CSU Two major groups: Non-immigrants... those with no intent to stay in the U.S. permanently F-1 (student), F-2 (dependent of an F-1) J-1 (student or scholar), J-2 (dependent of a J-2) B-1/B-2 (visitor for business or pleasure) TN (temporary worker from Canada or Mexico) E-3 (temporary worker from Australia) Non-immigrants allowed to have dual intent H-1B ( temporary worker), H-4 (dependent of an H-1B) O-1 (worker of extraordinary ability), O-3 (dependent) Immigrants... those who intend to stay in the U.S. indefinitely Permanent residents 7
Job offer accepted Now what? If in the U.S., find out the individual s current immigration status. In some situations, work authorization is already in place. 8
F-1 students General Rule: Allowed to work on campus up to 20 hours a week while enrolled full-time. Also allowed to work on campus over 20 hours a week during official breaks and summer. 9
F-1 Students CPT (curricular practical training) approved for part-time or full-time employment dates are noted on the student s Form I-20 Form I-20 may be issued by another institution work must be an integral part of an established curriculum It s the student s responsibility to obtain CPT 10
F-1 students OPT (optional practical training) approved by U.S. Citizenship and Immigration Services approved for a specific period of time designated on an OPT card (also known as an EAD card) work must be related to student s field of study the student s I-20 may be issued by another institution normally used after graduation It s the student s responsibility to obtain OPT 11
J-1 student General Rule: May work up to 20 hours per week on campus while enrolled full-time. May work over 20 hours per week on campus during breaks and summer 12
J-1 student may obtain Academic Training work authorization for up to 18 months throughout their academic career (or up to 36 months for postdocs) normally used after graduation work must be related to field of study Academic Training approved on Form DS-2019 and in a work authorization letter issued by an international student advisor Form DS-2019 and letter may be issued by another institution approved for a specific employer It s the student s responsibility to acquire Academic Training 13
J-1 scholar J-1 scholars come primarily for teaching, research, consultation, or observation J-1 scholars may hold any research or teaching position at CSU except tenure-track positions and positions that require anything more than incidental patient contact. J-1 scholars may not hold student appointments. position can be either paid or unpaid 14
J-1 scholar J-1 scholars (professors and researchers) may come for up to five years J-1 short-term scholars may come for up to six months must be sponsored by a specific department department must initiate processing by completing DS-2019 request packet available online (DS-2019 request packet). Part of the packet is to be completed by the department, part by the visitor. 15
J-2 dependent A dependent of a J-1 visitor holds J-2 status J-2 dependents may not work without first obtaining an EAD card (Employment Authorization Document) from U.S. Citizenship & Immigration Services. Dates of authorized employment will be noted on the card. a J-2 dependent with an EAD card can work in any job, full-time or part-time. It s the J-2 dependent s responsibility to apply for work authorization 16
J-1 scholar Lisa Pappas Office of International Programs 970-491-5917 17
H-1B temporary worker Designated for non-us workers in specialty occupations The position must require a bachelor s degree in a specific field(s) of study relevant to the duties to be performed, AND the required degree must be one which is regularly required for the position offered The foreign worker must possess the appropriate degree (BS, MS, PhD) in the field of study noted in the approved position description 18
H-1B temporary worker H-1B status may be requested for a maximum of three years at one time Total of six years is possible (some exceptions) Position must be a paid position Salary must meet Department of Labor prevailing wage requirements At CSU, H-1B workers may not hold part-time positions 19
H-1B temporary worker H-1B employment is employer specific, position specific, and location specific H-1B processing should be started well in advance of the expected start date H-1B processing must be initiated by the hiring department by completing the H-1B request packet available online (H-1B request packet). Most of the packet must be completed by the department, but some of the information must come from the foreign national. H-1B training is available through OIP 20
TN professionals A status created as part of the North American Free Trade Agreement (NAFTA) Only for citizens of Mexico and Canada Activity must fit within one of the 63 NAFTA-specified occupations (teachers, scientists, research assistants, medical/allied health professionals, computer analysts, economists & engineers included) Employment is supposed to be temporary. This status does not work for tenure-track appointments. 21
TN professionals Good for up to three years at a time Canadians may apply at the border Mexicans must apply for visa at US Consulate Hiring department must provide a letter confirming the dates of employment, the requirements of the position, and the duties that will be performed. The letter should reference the professional occupation (from the NAFTA list) in which the employee will be engaged. 22
O-1 worker of extraordinary ability Individuals that have achieved and sustained national or international acclaim for extraordinary ability in the sciences, arts, education, business or athletics Must be approved by USCIS Initially approved up to 3 years Extensions for up to 1 year at a time No limit on the number of extensions This option may work for qualified individuals that have exhausted their H-1B eligibility or those subject to the two-year home residency requirement Documentation requirements are high The standard for approval is high 23
O-1 worker of extraordinary ability O-1 processing must be initiated by the hiring department by completing the O-1 packet online (O-1 packet). Part of the packet will be completed by the department, but much of the documentation will come from the employee. The petition requires letters of support and documentation of publications, citations, awards, etc. 24
E-3 temporary workers Must be a citizen of Australia Must be coming to perform services in a specialty occupation Approved by USCIS if already in the U.S. USCIS approval not necessary if not in the U.S. Initially granted up to 2 years Extensions up to 2 years at a time No limit on the total length of stay Processing must be initiated by the hiring department by completing the E-3 packet (E-3 packet). 25
B-1 Visitor for Business/B-2 Visitor for Pleasure (or WB/WT status for those coming from visa waiver countries) B visitors may not be employed Reimbursement of actual expenses is okay Useful for those visiting for a short period of time to consult with colleagues, to participate in a scientific/professional conference, or to undertake independent research. 9-5-6 rule for honorarium payments Honorarium is okay if the activity lasts no longer than 9 days at a single institution and the alien has not accepted such payment from more than 5 institutions over the last 6 months. Visitor may need a letter of invitation from the host department in order to apply for the visa. 26
Immigration classifications Chart available online (classifications chart) 27
Thinking About Foreign Workers Position Descriptions Wording of the position description has implications for future immigration processes Best advice - List only the true minimum requirements that are acceptable and sufficient to perform the duties described Requirements should not reflect the qualifications of an ideal candidate or those of a specific worker. Inflated minimum requirements may directly impact the wage that must be paid to the worker. 28
Thinking About Foreign Workers Position Descriptions Substantial experience requirements will yield a high prevailing wage determination for H-1B temporary workers Credentials/skills/experience not truly required may be stated as desired 29
Thinking About Foreign Workers Position Descriptions Clearly indicate the level of degree required (Bachelors, Masters, PhD) List all acceptable fields of study for the position Ensure that the final candidate possesses credentials that match those listed in the position description 30
Thinking About Foreign Workers Position Descriptions Tenure-track faculty teaching ads should clearly indicate teaching duties in some form. Advertisements for tenure-track teaching positions must appear in at least one national print journal within the appropriate field. Electronic ads/websites are not acceptable as the sole venue for seeking qualified candidates. All acceptable, foreseeable fields of study should be listed in the ad. 31
Thinking About Foreign Workers Interviews Candidates may be asked if they are legally authorized to work in the US providing the question is asked of ALL candidates. May seek clarification since many visas are tied to specific employers The best time to ask this question is toward the conclusion of the interview The purpose of the question is not to discriminate, but to assess whether the department must initiate immigration processing. Questions about a foreign address that would indicate national origin are not permitted, nor are questions regarding native-born or naturalized status. 32
Thinking About Foreign Workers Interviews Please feel free to schedule a time during the oncampus interview for the candidate to visit OIP if he/she has immigration questions. US employers are not required to sponsor foreign workers for a particular nonimmigrant status. It s probably a good idea to contact OEOD if an offer is made, but the department wishes to withdraw it. 33
Thinking About Foreign Workers Letters of Offer standard language Since you are a Foreign National on a limited visa, it will be your responsibility to seek Lawful Permanent Resident Status from the Immigration and Naturalization Service, but the Department of will assist you in this process. Aside from whatever administrative assistance we may be able to provide, we will help to defray reasonable expenses in achieving such status. Fees overview 34
Thinking About Foreign Workers Upon Arrival J-1 scholars must report to OIP for check-in and orientation immediately upon arrival in US H-1B, O-1, E-3 temporary workers OIP advisor notifies the new employee when the petition is approved and schedules an appointment to meet. B-1/B-2 and WB/WT visitors do not need to check in with OIP. TN workers are not required to check in at OIP, but it doesn t hurt to do so. 35
Thinking About Foreign Workers Upon Arrival For tenure-track teaching faculty, departments should be aware that the process toward permanent residence should start within 18 months of the date on the letter of offer, NOT the individual s start date here at CSU. 36
Thinking About Foreign Workers Taxes OIP does not advise on taxes If the employee is a non-resident for tax purposes, he/she may use the CINTAX program online to prepare the appropriate tax forms. Access to CINTAX requires a password that will be provided by OIP to the international community here at CSU during tax season. 37
Thinking About Foreign Workers During Stay Consult OIP before making any changes to a foreign worker s employment that is here in H-1B, E-3 or TN status. Encourage foreign workers to contact OIP with questions related to employment. 38
Thinking About Foreign Workers During Stay Ensure extension process for employment authorization is initiated well before the expiration of current work authorization At least two weeks in advance for J-1 scholars At least four months in advance for H-1B, O-1, E-3 and TN temporary workers When in doubt, refer foreign worker to OIP during walk-in advising hours from 1:00-4:00pm Monday, Wednesday and Thursday, and 9:00-12:00 noon on Tuesdays (or schedule an appointment). 39
Thinking About Foreign Workers Upon Departure Foreign nationals should complete and return a Departure Form found online (departure form) when leaving employment. OIP has certain reporting requirements that must be taken care of when a foreign national leaves employment. Please follow up and make sure OIP knows employee is leaving CSU. 40
Training offered for immigration processing Feel free to contact OIP for training on any specific type of immigration processing 41
QUESTIONS? 42