As a leading educational and research institution, Washington University regularly recruits and hires scholars, researchers, and physicians from around the world. Effective, efficient processing of immigration matters is vital to ensure the University’s continuing ability to successfully attract and retain these individuals.
Many employees are able to pursue their teaching and research activities at the University in a temporary immigration status. However, in some cases, the University wishes to establish an employment relationship of indefinite duration (i.e.; a relationship that is not necessarily limited by the term of the employee’s visa.) to ensure that those employees may continue their contributions to the University’s missions of superior teaching, research and patient care.
In those cases, the University may decide to sponsor that employee for permanent resident (“green card”) status. U.S. immigration law provides that employers may sponsor certain eligible international employees for lawful permanent residence by petitioning the U.S. Citizenship and Immigration Services (“USCIS”) on a form called an “Immigrant Petition for Alien Worker,” also known as Form I-140. You should be aware that an employer sponsored petition is only one of several different avenues for a foreign national to seek permanent resident status. The University is not involved in sponsoring the employee’s petition in those other avenues such as, for example, petitions based on marital status, the Diversity Lottery or asylum.
In the past, the pursuit of permanent residence through University sponsorship has often been initiated by the employee. However recent changes in the governmental regulations, policies, and procedures for permanent residence applications have imposed certain legal obligations on the sponsoring employer. Therefore, it is vitally important that each department understands the representations that it will be required to make on the University’s behalf during this process. These representations include but are not limited to confirming the permanent nature of the position in question, and assuring that the salary will meet the prevailing wage requirements. In this context, the term permanent means that the position itself is ongoing, regardless of whether the employee has tenure, an employment contract, or is an employee at will.
The purpose of these guidelines is to articulate the procedures for these University-sponsored permanent residence applications.
Positions that are Eligible for University Sponsorship
Washington University has made a commitment to apply for employment-based permanent residence for foreign nationals who are in tenure-track and tenured positions. These applications must be routed through the Office for International Students and Scholars (“OISS”) and the Office of the Executive Vice Chancellor and General Counsel (“OGC”). OGC will retain outside immigration counsel, as appropriate.
Departments may occasionally wish to apply for permanent residence for individuals outside the tenure/tenure-track classification who have nearly exhausted their temporary visa options, but whose services are still required by the department. These applications must be premised on the University’s business need for the individual’s services, rather than the employee’s desire to obtain permanent residence. These applications must also be routed through OISS and OGC. OGC will refer those matters to outside counsel for assistance in filing the necessary applications, where appropriate.
For a position to meet the threshold eligibility requirements for a University-sponsored permanent residency application, the following conditions must be met:
- The position must be full-time and “permanent,” defined as “. . . 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.” 8 C.F.R. 204.5(i)(2).
- For labor certification cases, the salary associated with the position must meet the prevailing wage.
- The position must require professional-level credentials and skills.
Due to the temporary nature of postdoctoral and clinical fellowship training positions, those positions cannot be used to support an application for permanent residency. However, individuals in these temporary training positions or in other positions that do not currently qualify for permanent residency may nonetheless be eligible for a University-sponsored permanent residency application if the department has extended a definite commitment to that individual for a qualifying position and the individual has accepted that position effective immediately after his or her training period.
Categories for Filing
There are four paths available to an employee or potential employee who seeks to obtain lawful employment-based permanent residence status, including: (1) submitting an application as an Alien of Extraordinary Ability; (2) applying as an Outstanding Professor or Researcher; (3) requesting a National Interest Waiver; or (4) pursuing Labor Certification. Of those four paths, only Outstanding Professor or Researcher applications and Labor Certifications require University sponsorship. Those two options are described below:
- Outstanding Professor/Researcher – The outstanding professor or researcher application requires the University to substantively document broad-based international recognition of a faculty member’s or researcher’s outstanding achievements. Immigration regulations dictate specific criteria that must be demonstrated to successfully pursue permanent residency through this avenue, including more than three years of teaching and/or postdoctoral research experience, a strong publication record, superlative evaluations by recognized experts in the field, and the receipt of prizes, awards, or other forms of professional recognition.
- Labor Certification – Applications for workers in most employment categories require a labor certification. The labor certification requires documentation of the recruitment and selection process to demonstrate that the individual will not displace a U.S. worker, and that no U.S. workers’ salaries or working conditions were adversely affected by hiring an international employee. These applications are submitted through the Department of Labor’s Program Electronic Review Management (commonly referred to as “PERM”) system. PERM requires that there be only one point of contact for this system for each employer. OISS serves as that point of contact for Washington University labor certifications.
U.S. immigration law provides that college and university teachers are accorded “optional special recruitment” in the labor certification process, also referred to as “Special Handling.” In contrast to the regular labor certification requirements, special handling enables the University to hire the most qualified individual, without regard to whether other minimally qualified individuals are available. However, to take advantage of Optional Special Recruitment, the Department of Labor requires that (1) the labor certification must be filed within eighteen (18) months of the date that an offer of employment is extended, and (2) there was a competitive recruitment and selection process that included advertising in a national publication. Advertising for the faculty position must include a print advertisement in a national publication, not merely online advertisements. To ensure that recruitment efforts comply with these requirements, it is strongly recommended that departments contact OISS in advance for guidance.
Please note the Department of Labor regulation requires that all fees for the labor certification be paid by the employer, including recruitment fees and attorney fees. The department cannot request or accept reimbursement for the expenses for the labor certification under any circumstances, nor can these costs be charged to research grant. To pay for the expenses of the labor certification, the department cannot in any way reduce the employee’s pay or take funds out of the accounts that the employee oversees. These expenses should come out of departmental funds.
Retention of Outside Counsel
Applying for employment-based permanent residence is a complex process and often requires 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 University-sponsored 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 for permanent residence process is the filing for adjustment of status (Form I-485), which is solely the employee’s application and responsibility. For the sake of efficiency, the University recommends that this application also be filed by the same attorney who handled the previous steps.