All applications for permanent residence based on employment at Washington University must be prepared and filed by Washington University and will only be prepared and filed if a department has determined that the University’s business needs require the permanent residence of the particular employee or prospective employee. The following procedures apply to all such applications.
The department’s business manager must complete the form entitled “Departmental Approval for Referral to Outside Immigration Attorneys,” and submit the form to the Office of International Students and Scholars (“OISS”). OISS will meet work with the General Counsel’s Office to assign an outside immigration attorney to work on the permanent residence case and communicate with the business manager about the attorney assignment and any other relevant issues related to the case. In conjunction with the Office of Executive Vice Chancellor and General Counsel (“OGC”), OISS will oversee the application process.
In general, there are three steps in the application for employment-based permanent residence: labor certification, filing the immigrant petition, and adjustment of status or consular processing. These steps are discussed in more detail below. Labor certification is not necessary for individuals who qualify in the outstanding researcher/professor category. Therefore, applications on behalf of those workers begin with the filing the immigrant petition with the USCIS, as described below in Step 2.
For employees who do not qualify as priority workers, the permanent residence process begins with the Labor Certification procedure. The purpose of the labor certification procedure is to determine whether hiring the employee would displace an appropriately qualified U.S. worker. If so, the University cannot proceed with the application. Applications for labor certification for non-teaching positions are submitted to the United States Department of Labor (DOL) through its Program Electronic Review Management (“PERM”) Labor Certification process.
For non-teaching positions, the University must obtain the prevailing wage for the position, advertise the job according to prescribed DOL guidelines for labor certification, and notify its current employees of the availability of the position. This recruitment effort must be fully documented, and the results must be reported to the DOL.
Teaching positions are handled the same way, unless they are eligible for “optional special recruitment labor certification,” also referred to as “special handling.” Specifically, if the University conducted a recruitment effort for the particular teaching position, the results may be used for the labor certification provided that the recruitment followed DOL guidelines for the optional special recruitment process, including (but not limited to) a print advertisement in a national publication in the field. In contrast to the standard labor certification filing, optional special recruitment permits the University to hire the most qualified individual, without regard to whether the U.S. candidates are minimally qualified. However, the labor certification based on the results of the recruitment effort must be filed with the Department of Labor within 18 months after the offer of employment.
The final stage of the labor certification process requires the University to submit an electronic application form (Form ETA 9089: Application for Alien Labor Certification) to the DOL. Provided that the University can demonstrate that no U.S. worker with the requisite qualifications will be displaced if the foreign worker is hired for the position, the application will be approved. (In special handling cases, this test is met if the University can show that it hired the best qualified individual).
Filing the Immigrant Petition
Once the labor certification has been approved (or as the first filing for an outstanding professor/researcher, because labor certification is not required for those applications), the University must file an immigrant petition with the USCIS (Form I-140: Immigrant Petition for an Alien Worker). In the I-140, the University must demonstrate that the candidate satisfies the requirements for the position, and attest that the University will pay the prevailing wage for the job.
I-140 petitions based on a labor certification must be sponsored by the University. Therefore, before signing an I-140 Immigrant Petition for Alien Worker, or providing letters in support of an application for permanent residence, please contact OISS to ensure that any such petition has been approved through the procedures outlined herein.
Adjustment of Status/Consular Processing
The final step in any permanent residence case involves either adjusting the applicant’s status from non-immigrant visa holder to lawful permanent resident (known as “adjustment of status”), or obtaining an immigrant visa at a U.S. consulate, followed by the person’s entry into the U.S. as a permanent resident (known as “consular processing”). Each method has benefits and disadvantages. The adjustment of status form (Form I-485) is filed with USCIS while the person is in the United States, and may be filed concurrently with the Form I-140, if immigrant visas are available. The individual may apply for work authorization and advance parole (ability to travel in and out of the United States while the application is pending). In contrast, for consular processing, the individual applies in person at a U.S. consulate in his/her home country, after obtaining approval for the I-140. Consular processing requires a medical examination, a background check, and an interview at the consulate in the person’s home country. Employment authorization and advance parole are not available. However, the consular processing option has the advantage of a much faster timetable than adjustment of status.
Retention of Outside Counsel
Applying for employment-based permanent residence is a complex process and applications based on university employment raise some unique issues. These applications generally require the assistance of an immigration attorney with specialized expertise in the area of permanent residence applications for University faculty and researchers. The Office of the Executive Vice Chancellor and General Counsel is the legal counsel for the University and its affiliated entities. As all applications for permanent residence are filed on behalf of the University as well as the employee, OGC will select and retain appropriate outside counsel to prepare all relevant filings. Faculty, staff and students may not employ outside attorneys to represent or provide legal services to the University or its affiliated entities. The last step in the permanent residence process is the filing for adjustment of status (Form I-485) or consular processing, which is solely the employee’s application and responsibility. For efficiency’s sake, the University recommends that this application also be filed by the same attorney who handled the previous steps.
Each department is encouraged to review this policy and set up guidelines for sponsorship of permanent residence for employees in the department. For example, a department may choose to limit sponsorship of permanent residence to those individuals who have faculty positions. Please submit a copy of any such guidelines to OISS or OGC.
If you have any questions about this policy, please contact the OISS or OGC for guidance.