Sponsoring Professors for Immigration Status

INTRODUCTION

Colleges may sponsor foreign-born professors in a variety of nonimmigrant and immigrant (permanent resident - green card) categories.  “Nonimmigrants” are noncitizens legally in the United States for a limited purpose, and usually for a limited period.  Immigrants/permanent residents may reside and work in the United States indefinitely, eventually qualifying for citizenship. 

CUNY policy is that immigration sponsorship is at the discretion of the college president, subject to applicable law and CUNY Board of Trustees approval.  Most, but not all, CUNY colleges sponsor foreign faculty for both nonimmigrant and immigrant status. Baruch policy is that for nonimmigrants, the college sponsors only professors in full time positions.  For immigrant status, the college sponsors only professors in tenure-bearing positions.  All legal expenses and filing fees are the responsibility of the professor.   Baruch requires that all petitions and applications be prepared by an attorney retained by the professor.  The Provost will sign USCIS form G-28, Notice of Representation, if requested to do so by the professor’s attorney.

Many foreign-born employees come to the institution with general employment authorization of indefinite duration and thus do not require sponsorship.  This group includes permanent residents, asylees, refugees, some applicants for permanent residence and individuals granted Temporary Protected Status (TPS).  A few recent graduates have practical training employment authorization, but that status is valid for a maximum of one year.

Colleges and universities typically first employ professors needing sponsorship in either H-1B temporary professional worker status, O-1 status for outstanding individuals, TN temporary worker status for nationals of Canada and Mexico, H-1B1 status for nationals of Chile and Singapore or J-1 Exchange Visitor status. 

The authority to grant employment eligibility to non-citizens of the United States rests with Federal agencies rather than the College.  The College makes no promises or guarantees of the success or timing of any application for employment status.  If an employee is unable to obtain the appropriate and timely immigration status, the College may rescind an offer of employment.

It is possible for some professors to obtain permanent residence, through the labor certification process or through classification as an outstanding professor.   In unusual cases, a professor may qualify as “extraordinary” or as a person doing work in the “national interest.” 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 qualified for a national interest waiver are eligible for permanent residence in the “outstanding” category and should apply in that category.

NONIMMIGRANT V. PERMANENT RESIDENT STATUS

Nonimmigrant status is usually temporary and is based on the individual’s compliance with the conditions of that status.  Permanent residence (sometimes called green card or immigrant status) allows the individual to live and work indefinitely in the United States, and to eventually 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 are required for nonimmigrant status.

NONIMMIGRANT STATUS

Nonimmigrant employment-based status allows an employee to work for the college based on a petition signed by the college.  The college is the petitioner, and the employee is the beneficiary of the petition.  H-1B status is the most common and practical solution for getting USCIS employment authorization as a professor.  O-1, TN, and H-1B1 status can be useful in special circumstances.  J-1 status may also be available, but that status may limit the employee’s ability to get permanent residence or H-1B status.

H-1B Status

H-1B status is available for professional workers in specialty occupations (occupations which require at least a bachelor’s degree) who are offered employment at the “required wage,” which is the higher of the prevailing wage or the “actual” wage - that is, the wage paid to others in similar positions.  At CUNY, the first salary step in the salary schedule for a particular rank is considered the required wage. 

H-1B status is available for up to six continuous years, in up to three year intervals.  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.  (More on immigrant visas below.) 

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.  Employees already in H-1B status, for instance someone already teaching at another institution, may begin work immediately at Baruch on receipt of a new H-1B petition by the USCIS.

O-1 Status

O-1 status is available to individuals with extraordinary ability in the sciences, the arts, education, business, or athletics, shown by sustained national or international acclaim.  Because H-1B processing is so much easier, colleges and universities use O-1 status sparingly.  O-1 status would be useful for an employee whose H-1B status is expiring, where the employee is not eligible for extensions beyond six years as discussed above.  It is also available for an employee in J-1 status who is not eligible for H-1B or permanent resident status. 

H-1B1 Status for Chilean and Singaporean Nationals and TN Status for Canadian and Mexican Nationals

Under various Free Trade Agreements, Chilean, Singaporean, Canadian and Mexican professionals can work in the United States under a status similar to H-1B status.  For nationals of Chile and Singapore, the special status it is called H-1B1;  for Canadians and Mexicans, TN. Most professionals can choose either H-1B, H-1B1 or TN status.

Even if a professor qualifies for TN or H-1B1 status, usually H-1B status is preferred.  Employees in TN and H-1B1 status are admitted for only one year, although they have the right to leave and reenter the United States as often as they like during that year. At the end of the year, the professor must apply to the USCIS for an extension of status or reapply for a visa at a consulate or - for Canadians only- at a U.S. port of entry or pre-inspection station.  In addition to having to renew status every year, another disadvantage of TN and H-1B1 status is that if the professor has started the process of becoming a permanent resident, he or she could be denied entry as a TN or H-1B1. Note that TN status may be available to J-1 status holders subject to the two-year home residence requirement discussed below.

J-1 Status

J-1 Exchange Visitor status is available for professors participating in an exchange visitor program.  Once the U.S. Department of State (DOS) authorizes a college to run an exchange visitor program, the college issues the employee form DS-2019, (formerly form IAP-66), allowing the employee to apply for a J-1 visa either at a U.S. consulate abroad or through an application for change of nonimmigrant status while in the United States.  The J-1 process usually results in speedy employment of the professor since the college is not required to petition the USCIS or other agency prior to the employee being granted J-1 status. 

J-1 scholars who receive U.S. government or home government funding, or whose skill is on the DOS “skills list” for that country, may not change to H-1B or permanent resident status without first returning home for two years.  The skills list is based on the home country’s assertion that the employee’s skill is needed in the country.  For some countries, Canada for instance, no skills are listed.  For others, like China, ALL skills are listed.  In limited cases, the DOS will waive the two-year home residence requirement, but getting the waiver can be a difficult and lengthy process.  The DOS often denies waiver applications.

STEPS IN GETTING H-1B STATUS

The first step in getting H-1B status is for the prospective employer to obtain a Labor Condition Application (LCA) approved by the U.S. Department of Labor (DOL).  This is a different document than a Labor Certification Application discussed below and is much easier to get.  The LCA is applied for online.  Approval is immediate.  Then, an H-1B petition and the LCA are filed with the USCIS.  If the employee is in the United States, application is made to change to H-1B status or to extend that status.  If the applicant is abroad, the petition approval is forwarded to a U.S. consulate and the applicant must obtain an H-1B visa before coming to the United States and beginning employment. 

IMMIGRANT/PERMANENT RESIDENT/GREEN CARD/ STATUS

Baruch can support Professors seeking permanent residence through three alternative procedures: (1) labor certification by the DOL; (2) a petitions to the USCIS for outstanding professors; and (3) support for self-petitioning by individuals of extraordinary ability or who have applied for a “national interest waiver.”

Labor Certification Applications 

Most professors need a labor certification from the DOL as a prerequisite for filing an employment-based permanent residence 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 must use the traditional labor certification process. 

Though an approved labor certification is valid indefinitely, the job title on the petition filed with the USCIS (the next step after getting DOL certification) must be the same as the job title on the labor certification.  That could be a problem if a professor is promoted.  However, the professor can continue with his or her permanent residence application even if the job title has changed, if his or her application for permanent residence has been pending with the USCIS for more than 180 days and the USCIS has approved an I-140 employment-based immigrant visa petition for the applicant.

Outstanding Professors

To qualify as an outstanding professor, an applicant 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, but the applicant must have a job offer from a college, university, research institute, or private company.  For a college or university teacher, the job must be for a tenured or tenure-track position, or a position of unlimited duration.  Professors applying in the outstanding category should apply for a labor certification as well, in case the USCIS denies the outstanding professor petition.

To qualify as an outstanding professor, an applicant must meet at least two of the following criteria:

•       Receipt of a major award for outstanding achievement in his or her field.
•       Membership in academic associations that require outstanding achievements as a condition of membership.
•       Published discussions of the applicant’s work in professional journals.
•       Participation as a judge of the work of others in the same or a related field.
•       Original scientific or scholarly research.
•       Authorship of scholarly books or articles.

While it would appear that most Baruch professors would meet the “two of the following” test, the USCIS takes seriously the regulatory mandate that the applicant prove “international recognition.”  Usually the applicant provides letters from recognized experts evaluating the applicant’s work as evidence that the professor is outstanding.

The advantage of applying in the outstanding category is that no DOL processing is required, and thus the applicant saves time.  Also, in most cases the applicant can file the employment-based immigrant petition concurrently with an application for adjustment of status to permanent residence.  The applicant can then apply also for work and travel incident to that application.  Thus, the applicant need not always apply for extensions of nonimmigrant status, though it is often advantageous to do so.  The applicant’s spouse and unmarried children under twenty-one qualify for employment authorization and travel permission as well.

Extraordinary Ability

A professor qualifying in the “extraordinary ability” category need not have a college official sign the necessary employment-based petition. The applicant must however, establish that he or she will continue working in their field.  Often this requires a letter from a potential employer. 

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.   The applicant should be able to show at least three of the following:

•       Receipt of a national or international award in his or her field.
•       Membership in an association that requires outstanding achievement as a condition of membership.
•       Published material about the applicant in professional, trade, or major media publications.
•       Reviews or discussions of the applicant’s  work in a major publication or other major media.
•       The applicant’s participation as a judge of the work of others in the same or a related field.
•       Original contributions, usually through publication, of major significance in the applicant’s field.
•       Authorship of scholarly articles.
•       Display of the applicant’s work at significant exhibitions.
•       The applicant’s performance in a significant role for organizations or establishments that have a distinguished reputation.
•       Receipt of a higher salary than is usual in the field.
•       Commercial success in the performing arts as shown by box office receipts or sales records.

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.  Baruch College does not begin H-1B petitioning until the employee has been approved for employment by the CUNY Board of Trustees.  

Step 2 Retaining Counsel

The employee should retain legal counsel as soon as possible. 

Step 3 Petition for H-1B status

If the employee is already in H-1B status, he or she may begin work at Baruch immediately upon receipt by the USCIS of a Baruch H-1B petition.  An example would be a professor who had been teaching at another school.  In all other cases, a petitioned-for employee may not begin work until the employee acquires H-1B status based on a Baruch petition.  If the employee is in the United States, he or she applies for a change to H-1B status. If the employee is abroad, he or she obtains an H-1B visa at a U.S. consulate and uses that visa to enter the United States.  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

The college can file a special handling labor certification with the DOL within 18 months of the offer to hire a professor.   If the professor does not qualify for special handling, the college may be required to seek a labor certification through normal processing.

Step 5 Petition and Application for Permanent Residence

Once the DOL certifies the application, the college may petition for the employee to qualify him or her for permanent residence.  Commonly, the employee will file that petition with his or her application for adjustment of status to permanent residence.  The employee’s spouse and the employee’s unmarried children under 21 may apply for adjustment of status as well.  With the adjustment application, the employee and family may apply for employment authorization and travel permission (and thus no longer need H-1B or O-1 status, although it is usually prudent to continue to maintain nonimmigrant status throughout the immigrant application process).  In the New York area, such applications are taking about two years. 

ALTERNATIVE PATHS: BYPASSING STEP 4

Outstanding professors and extraordinary individuals may petition for permanent residence without first getting a labor certification from the DOL.   Thus, in most cases, these applicants may apply for permanent residence simultaneous with filing the petition. 

Outstanding professors require a petition signed by an officer of the sponsoring institution.  Extraordinary individuals may self-petition for permanent residence.  The college would not be a party to the extraordinary individual application, though getting permanent residence without a support letter from the college would be difficult for most applicants in the category. 

Professors applying in the outstanding and extraordinary categories are urged to apply for a labor certification as well.  That protects the professors in the event that the USCIS denies the outstanding professor petition.