Baruch College Guide to Immigration
for Professors
INTRODUCTION
Baruch College values its international faculty. This memo provides important information on how you can get and keep lawful status in the United States.
U.S. law regarding immigration status is complicated and you will need to work with an attorney on such matters. Among the items attached, is a list of attorneys with experience representing college faculty. We urge you to seek their assistance. We attach also a Baruch Information sheet which your attorney will need in preparing immigration forms for you.
Baruch supports appropriate applications for employment-based immigration for professors in tenure-bearing positions. However, our limited resources do not allow us to provide you with legal representation nor to pay filing fees. Please note that Baruch sponsorship for immigration status does not indicate a continuing offer of employment. Employment of professors is covered by the CUNY and Baruch College rules for appointment and reappointment.
YOUR RESPONSIBILITIES
It is your responsibility to maintain lawful status. We encourage you to retain legal counsel as soon as possible. The Provost signs petitions prepared by attorneys only. A consultant to the Provost reviews all petitions, but the quality and accuracy of those documents are your and your attorney’s responsibility. Other applications, including applications for a nonimmigrant visa at a U.S. consulate, are not reviewed by the college.
NONIMMIGRANT (TEMPORARY) V. IMMIGRANT (PERMANENT- GREEN CARD) STATUS
There are many types of nonimmigrant status - we are concerned with employer-based status such as H-1B, F-1 with practical training, and J-1 visas. Nonimmigrant status limits what you can do in the United States and, in most cases, how long you can stay. Employment-based nonimmigrant status requires that you continue employment with your petitioning employer unless you are petitioned for by a different employer.
Permanent residence (sometimes called “green card” or immigrant status) allows you to live and work indefinitely in the United States, and eventually to apply for U.S. citizenship. Nonimmigrant status does not automatically lead to permanent residence. Permanent residence requires a separate application, usually based on criteria different than those required for nonimmigrant status.
STATUS V. VISA
There is a difference between a visa (stamped into your passport) and your status in the United States. A visa is used only for entry and is issued at a U.S. Consulate abroad. For instance if you qualify for F-1 status, you can get an F-1 visa to enter the United States. If a border officer admits you based on your F-1 visa, you are then in F-1 status.
The reason we make a big deal about the status v. visa distinction, is that you can change your status within the United States, but you can get a visa only at a U.S. consulate abroad. So, suppose you change your STATUS while in the United States from F-1 to H-1B by applying to the USCIS. Now you can work based on your H-1B status, but you do not yet have an H-1B visa. If you leave the United States and subsequently want to return in H-1B status, you will need an H-1B visa. Without the visa, you will not be admitted to the United States. (There are exceptions which are discussed below.) That’s true even though you changed your status prior to your departure.
One exception to the rule that you need the proper visa to reenter the United States is that you may travel to Canada or Mexico for up to 30 days and reenter without the proper VISA if your I-94 Arrival/Departure document indicates that your nonimmigrant status has not yet expired on the day you return AND, you have remained lawfully in the status indicated on the form. Another exception is that Canadians do not need a visa to enter the United States in most nonimmigrant statuses, including H-1B status.
USCIS form I-94 is the document stamped at the time of your entry into the United States indicating your status, and when it expires. When you change from one nonimmigrant status to another, the USCIS issues you a new form I-94 indicating your new status and when that new status expires.
Getting a new visa can take from one day to several months. Plan accordingly!
TEMPORARY EMPLOYMENT STATUS
H-1B status is the most common and practical solution to getting employment authorization for noncitizens who need it. Other nonimmigrant categories, such as O-1, H-1B1 (for Chileans and Singaporeans), and TN (for Canadians and Mexicans) can be useful in special circumstances to get employment authorization. J-1 status may also be available, but that status may limit the your ability to get permanent residence. We provide a brief overview of O, H-1B1,TN and J status at the end of this memo. Consult your attorney if you believe that a status other than H-1B is best for you.
H-1B Status
For you to get H-1B status to work at Baruch, the Baruch College Provost must sign an attorney-prepared H-1B petition for you. The college is the petitioner and you are the beneficiary of the petition. Attached is a sample employer letter and data sheet your attorney will need to prepare your H-1B petition.
It is the policy of Baruch College to petition for H-1B status for full time faculty.
H-1B status is available for professors for up to six continuous years. After six years, yearly extensions are available only to applicants who have had a labor certification application or employment-based immigrant petition pending for 365 days or more. It is in your best interest to begin processing for permanent residence as soon as possible.
For college professors, the H-1B process is relatively simple. Approval typically takes about three months, though for a $1000 expedite fee, United States Citizenship and Immigration Services (USCIS - formerly the INS) promises adjudication within 15 calendar days. If you are already in H-1B status, for instance because you are employed at another university, for you to work at Baruch you need to have Baruch petition for you. However, if you petition while still in H-1B status, you may begin employment at Baruch as soon as your petition has been receipted by the USCIS. You do not have to wait until it has been approved.
An H-1B petition requires a Labor Condition Application (LCA) certified by the U.S. Department of Labor (DOL). We will obtain a certified LCA for filing with your petition. We will provide you with the LCA and your attorney will submit it, with the signed petition and supporting documents, to the USCIS. If you are in another lawful nonimmigrant status without employment authorization, you may not begin employment until the USCIS approves your H-1B petition.
O-1 Status
Colleges petition for professors for O-1 status only sparingly. It is available to individuals with extraordinary ability in the sciences, the arts, education, business, or athletics, as shown by sustained national or international acclaim. Colleges and Universities use O-1 status sparingly because H-1B processing is so much easier. Still, O-1 status would be useful for an employee whose H-1B status is expiring, and the employee is not eligible for extensions beyond six years. It is available also for an employee in J-1 status who is not eligible for H-1B or permanent resident status. You may get O-1 status for up to three years initially, with an unlimited number of one year extensions for continuing employment with the same employer. If you change jobs, your new employer may petition for you for a new extension of three years.
H-1B1 Status for Chilean and Singaporean Nationals and TN Status for Canadian and Mexican Nationals
H-1B1 and TN status can sometimes be obtained more quickly than H-1B status. Nevertheless, Baruch College recommends that professors, if qualified, get H-1B status.
Employees in TN and H-1B1 status are admitted for no more than one year. At the end of the year, they must apply to the USCIS for an extension of stay or reapply for a visa at a U.S. consulate abroad. Canadians may apply for additional years of TN status at a U.S. port of entry or pre-inspection station at an airport.
An important disadvantage of TN and H-1B1 status is that if you have already started the process of becoming a permanent resident, you could be denied entry as a TN or H-1B1. TN status may be available also for J-1 exchange visitors subject to the two-year home residence requirement.
IMMIGRANT/PERMANENT RESIDENT (Green Card) STATUS
Baruch sponsors only faculty in tenure-bearing positions for permanent residence. You may qualify for permanent residence through three separate processes: (1) labor certification by the U.S. Department of Labor, DOL; (2) petitions by the employer to the USCIS for outstanding professors; and (3) support for self-petitioning by individuals of extraordinary ability or those who have applied for a “national interest waiver.” It is extremely difficult to get a national interest waiver. The applicant must prove that his or her work has a high-impact benefit to some aspect of U.S. society. Most individuals considering qualified for a national interest waiver are eligible for permanent residence in the “outstanding” category and should apply in that category.
Labor Certification Applications
Most professors need a labor certification from the DOL as a prerequisite for filing an employment-based permanent resident petition. For teaching staff, an expedited process known as “special handling” is available for applicants who apply for labor certification within 18 months from the end of recruitment, usually marked by the date of the offer letter. After 18 months, applicants may have to use more complex and expensive traditional labor certification process.
If you do not apply for a labor certification under the special handling rules, it may take several years longer for you to get your application certified. Therefore, we strongly urge that you apply for your labor certification within 18 months from the date of your offer letter.
Outstanding Professors
To qualify as an “outstanding” professor, you must show international recognition as outstanding in a specific academic area and, have at least three years of teaching or research experience in the area. This category does not require a labor certification. Baruch college policy is to review outstanding professor applications to determine whether the applicant meets the statutory and regulatory criteria. Based on this review, the Provost will decide whether the college will support the petition. Check with the Provost before retaining counsel to prepare an outstanding professor petition.
The USCIS takes seriously the regulatory mandate that the applicant prove “international recognition.” The applicant is usually required to provide letters from recognized experts evaluating the applicant’s work.
Extraordinary Ability
An individual qualifying in the “extraordinary ability” category need not have a college official sign the necessary employment-based petition. You must, however, establish that you will continue working in your field. Your petition may require a letter from Baruch College indicating continuing employment. Check with the Provost before retaining counsel to prepare a extraordinary ability petition.
To qualify in the extraordinary ability category, the applicant must prove extraordinary ability in the sciences, arts, education, business, or athletics. The applicant must show sustained national or international acclaim with recognized achievements. Winning an extraordinary ability case usually requires extensive documentation.
If you apply for permanent residence as an outstanding professor or a person of extraordinary ability, we urge you to file a labor certification application as well. That way, you have a back-up if the USCIS denies your petition.
Applying for Permanent Residence
Some professors applying for permanent residence require a labor certification from the DOL, some do not. Once you have an approved labor certification or you are petitioning in a category that does not require a labor certification, you may apply for permanent residence. When you apply for permanent residence, you are strongly encouraged to apply for employment authorization, and travel permission, called advanced parole. Working and traveling with these documents can be more efficient and less costly than working and traveling in your nonimmigrant status.
You apply for advanced parole using USCIS from I-131, Application for Travel Document. You apply for employment authorization using USCIS form I-765, Application for Employment Authorization.
TYPICAL PATH TO PERMANENT RESIDENCE FOR A COLLEGE PROFESSOR
Step 1 Offer Letter
The date on the offer letter is usually deemed the completion of the search for the purpose of the 18-month rule for special handling discussed above.
Step 2 Retain Counsel
Your immigration status is important to your future. You need the help of a skilled professional who is familiar with the Department of Homeland Security’s and the Department of Labor’s ever-changing rules and regulations. Attached is a list of several attorneys who practice immigration law.
Step 3 Get H-1B Status
If You Are Already in the United States in Lawful H-1B Status
If you are already in H-1B status, you may begin work immediately for Baruch upon your petition being receipted by the USCIS. An example would be a professor who has been teaching at another school.
If You Are Already in the United States in a Nonimmigrant Status Other than H-1B
If you are in a lawful nonimmigrant status other than H-1B, you may not begin work for Baruch College until you obtain H-1B or other employment-based status. In most cases you can do that by applying for a change of status. You may begin work only after the USCIS approves your change of status.
If You Are Abroad When the USCIS Approves a Baruch-filed Petition for You
If you are abroad when the USCIS approves a Baruch-filed petition for you, you must apply for a visa before you can enter the United States and begin work. Canadians do not need a visa. They apply for H-1B status at a port-of-entry or pre-inspection post.
Step 4 Labor Certification
If the college files a labor certification with the DOL within 18 months of hiring a professor, the case qualifies for special handling processing. After 18 months from the date of the offer letter, the college must seek a labor certification through normal processing.
Step 5 Petition and Application for Permanent Residence
Once the DOL certifies the application, the school may petition for you, using USCIS form I-140, Immigrant Petition for Alien Worker, to qualify you for permanent residence. Commonly, you will file with the petition an application for adjustment of status, USCIS form I-485 (Application to Register Permanent Residence or to Adjust Status) with USCIS form G-325A, (Biographic Information) . Your spouse, and your unmarried children under 21, may be able to apply for adjustment of status as well. With the adjustment application, the employee and family may apply for employment authorization and travel permission. In the New York area, such applications are taking about two years to process.
ALTERNATIVE PATHS: BYPASSING STEP 4
Outstanding professors and extraordinary individuals may petition for permanent residence using USCIS form I-140, without first getting a labor certification from the DOL. In most cases, these applicants may apply for permanent residence simultaneous with filing the I-140 petition.
Outstanding professors require a petition signed by the Provost. Extraordinary individuals applicants may self-petition for permanent residence. The college would not be a party to an extraordinary individual application, though getting permanent residence without a support letter from the college would be difficult for most applicants in this category.
Typically when you file the I-140 petition, you will file an application for adjustment of status, USCIS form I-485, (Application to Register Permanent Residence or to Adjust Status) with USCIS form G-325A, (Biographic Information), with the I-140 petition. Your spouse, and your unmarried children under 21, may be able to apply for adjustment of status as well. With the adjustment application, the employee and family may apply for employment authorization and travel permission. In the New York area, such applications are taking about two years.
APPENDED DOCUMENTS AND FORMS*
*Since forms and fees change you should consult the USCIS website for the latest information.
Forms can be downloaded from the government website: www.uscis.gov