Foreign Employees at U.S. Universities

Foreign Employees at U.S. Universities

Establishing Internal Policies for Permanent Residence Applications.

In order to provide guidance to the academic and operational departments at your school and to maintain consistency throughout the institution and avoid possible discrimination charges, it is important to formulate or update an overall policy regarding the sponsorship of applications for permanent resident status (often referred to as "green cards") on behalf of foreign employees in the United States.

New policies should be developed or existing policies should be examined and revised in light of recent regulations published by the United States Department of Labor ("DOL").

In July of 2007, the DOL adopted a final rule relating to labor certification applications for foreign workers seeking permanent residence in the United States through employment. Applications for labor certification are filed by employers with the DOL through a process known as PERM. The PERM application process requires the employer to first test the labor market through newspaper ads, internet postings and other mandatory recruitment activities in order to demonstrate that there are no able, willing and qualified U.S. workers available to fill the position and that the employment of the alien will not adversely affect the wages and working conditions of U.S. workers.

Applications filed on behalf of college or university teachers may be able to utilize less restrictive recruitment procedures if a competitive search process was conducted within the eighteen (18) month period prior to the filing of the PERM application. If the labor certification application is approved, the employer must then file a Form I-140 Immigrant Visa Petition with the Department of Homeland Security's United States Citizenship and Immigration Services (formerly known as the Immigration and Naturalization Service).

The DOL's final rule, which became effective on July 16, 2007, was passed in response to concern over fraud and abuse at the PERM stage of the green card application process, and it requires that all costs associated with the preparation, filing and obtaining of labor certification be borne by the employer. This includes attorney fees and the costs of recruitment. Moreover, employers are now prohibited from seeking reimbursement for such costs, even if the employee voluntarily leaves the employment during or subsequent to the filing of the application for labor certification.

In light of this new rule, all universities should examine and update their policies and any agreements they may have with employees from other countries to ensure that they are in compliance with these new regulations.

If a university does not have a formal policy in regard to "green card" sponsorship, several questions should be analyzed and discussed in the process of defining such an internal policy:

In determining whether or not to adopt a formal written policy it is important to first weigh the pros and cons. Formal policies generally refer to policies which the employer has a set way of implementing and provide for little flexibility. They should be widely disseminated throughout the institution, made readily available to all employees and conspicuous. There are a number of benefits in having a formal procedure for green card sponsorship. One benefit is that there is a streamlined and systematic approach for how these issues are handled. Additionally, since there is less discretion in the decision-making process, claims of discrimination are less likely. However, it is important to note that a formal policy is only beneficial if it is followed by all departments and operational divisions consistently.

Alternatively, the institution may decide that a formal written policy does not provide enough flexibility to make decisions on a case by case basis. If this is the case, then it may be preferable to draft a set of general guidelines which are not widely distributed. In this structure, supervisors should be informed that they do not have the authority to make decisions regarding institutional sponsorship of green cards, and that all employee inquiries should be directed to a designated individual or panel in the institution.

Please note that one danger of a decision making process which is not apparent or communicated to individual employees can be claims of disparate treatment or even of discrimination. For most employers, a detailed, explicit policy which still allows for flexibility is ideal.

There is a great deal of latitude in deriving a policy for which employees should be sponsored for green cards. Two common methods are based on job classification and seniority.

The institution may decide that only employees that meet certain criteria such as job classification or status will be sponsored for green cards. For example, the institution may decide that only professional or managerial level employees may be sponsored. While this may be a legitimate business distinction between levels of employees, there is always a risk that lower level employees may make a claim of discrimination based upon disparate impact.

Alternatively, a distinction based upon seniority, such as one where the school will only sponsor employees who have been employed at the school for at least one year, provides a very clear distinction and would fall under less attack to claims of discrimination. The downside to a seniority based distinction, however, is that sponsorship for a green card may become an important tool in the recruitment of a prospective employee, or a valued candidate or new employee may require such sponsorship to remain in the United States. Therefore, a written policy should contain some flexibility.

It is important to note that if a college or university teacher were to be hired after a competitive recruitment and selection process, there are significant advantages to filing a PERM application for the teacher within the eighteen (18) months of the recruitment and selection process. In most cases it will take at least two to three months to finalize and file the PERM application with DOL. Therefore, if the institution waits one year before addressing the question of sponsorship, then only a few months are left to make the final decision. This can be problematic in cases where the decision maker or makers are not available during a summer or between academic semesters.

A difficult question that often arises is when and whether to file an application for permanent employment certification or a non-PERM based immigrant visa petition, on behalf of an employee whose future employment is uncertain or contingent. Obviously, this is not a problem for tenured professors. But the future employment from tenured professors and that for researchers working on specific projects, whose positions may be contingent upon grants or other uncertain funding, is less predictable. It is often inappropriate to file a green card application on behalf of a temporary employee who has a defined term of employment that will not be extended. However, many researchers may have defined terms of employment that in practice will likely be extended over and over again on an indefinite basis. Institutions must often compete for such employees, and so a generous green card policy in this regard may be a critical recruitment tool. An institution should only sponsor a foreign national for permanent residence, however, when there is a reasonable expectation that the individual will remain in the position indefinitely.

The school may implement a process whereby an employee must first gain the recommendation of a direct manager before he or she can be considered for green card sponsorship, with the final decision to be made by a higher level official or department head. Alternatively, the decision can be made solely by a supervisor or by a human resources manager. In any case, the decision process and the question of authority should be defined in any internal policy.

A related question involves who can sign visa petitions and/or green card applications on behalf of the institution. This authority should be well defined in order to maintain control and efficiency, and streamline the process.

It is generally advisable that the final decision making authority be centralized, coinciding with authority to sign applications and petitions. This will help ensure consistency in policy and process implementation.

Legal fees for a typical green card application can range from $6,000 $10,000. Other external fees and costs can include newspaper ads, government filing fees for each family member, education equivalency reports, medical examinations for each family member, photographs and additional miscellaneous costs. These extra costs can add several thousand dollars to the final cost.

Under the new DOL regulations, the employer must pay the cost associated with the preparation and filing of a PERM application for labor certification, including any attorneys' fees as well as the costs of newspaper ads and related recruitment activities required in the PERM application process. The costs associated with the two remaining stages of the green card application, which are filed with U.S. Citizenship and Immigration Services and in some cases with the U.S. Department of State, can be borne legally by either an employer or the employee.

An internal policy should include whether, and in what instances, the school will pay for legal expenses after the PERM stage of the green card application process, and some if not all associated application costs, and whether such costs extend to family members.

Please note that once an employee has obtained permanent resident status in the U.S. (a "green card"), he or she is free to leave the employer, unless otherwise contractually bound. Because of this fact, in cases where the employer has agreed to pay for the fees and costs associated with a green card application, many employers have traditionally entered into written agreements with employees which contain provisions requiring the employee to reimburse the employer for fees and costs, on a prorated basis, if the employee voluntarily leaves the employer within a specified period of time.

Since July 16, 2007, however, an employer may not request reimbursement for any cost or activity associated with an employee's application for labor certification, including reimbursement of the employer's attorney's fees and employee recruiting costs. Employers who share an attorney with their employees also may not seek reimbursement for these fees and costs. This is true even if the employee quits or is terminated for cause within a fixed period of time. The final rule explicitly prohibits reimbursement agreements at the labor certification stage and instead allocates the risk of employee separation to the employer. However, the new regulations do not prohibit an employer from seeking reimbursement for attorney's fees, filing fees, and/or costs associated with filing Forms I-140, adjustment of status applications, consular processing of immigrant visa applications and non-immigrant visa petitions (subject to existing rules which prohibit an employer from seeking reimbursement for portions of H-1B filing fees). Employers who wish to seek reimbursement of these latter costs should provide an accounting to the employee that separately itemizes these fees and costs from those associated with the labor certification application and PERM.

A university can either require that a green card application be prepared by an approved outside attorney or they can allow an employee to obtain the services of an attorney of his or her choosing. Legally, this issue is separate from the question of which party will pay the attorney's fees, but practically speaking, some employees will expect the right to choose their own attorney if they will be paying the fees. Again, it is now the employer who must pay the costs and fees associated with the filing of a PERM application, but either the employer or the employee can pay for the subsequent stages of the green card process. Also, some professors and researchers will be able to file green card applications that do not require the filing of a labor certification application. In such cases, the DOL restrictions on payment of fees and costs do not apply.

However, please be advised that this issue involves more than just fees. An employment based green card application involves many issues, which can directly lead to legal and financial liability for the employer. Amongst these latent issues is the importance of maintaining consistency in statements made to government agencies in different applications. If various attorneys/firms are working on different green card applications for a particular institution, it may compromise the consistency in statements across applications. In addition, there is always the potential for disputes between the employer and the employee. We therefore recommend that an employer use the services of its own counsel to prepare and file employment based green card applications. Many employers provide a list of "approved" law firms with which the employer is willing to work on an exclusive basis.

Sponsoring an employee for a green card, by itself, does not constitute a promise of future employment and does not by itself alter the employment relationship, whether the relationship is "at will" or contractual. This fact should be clear in conversations with employees regarding green card applications, and should be reiterated in writing in an agreement between the company and an employee when the company has agreed to sponsor him or her for a green card.

Any internal policy should make it absolutely clear that no department can or should promise current or prospective employees that the institution will obtain permanent residence on his or her behalf. The application process is lengthy and can involve up to three federal governmental agencies, and the final decision to grant permanent residence must be make by the U.S. Department of Homeland Security. It is therefore never a certainty that permanent residence will be approved and therefore should not be promised.

Moreover, a university should never make representations that can be deemed a promise of future employment or terms of employment unless there is an existing employment agreement with the individual that contains such commitments.

Some institutions have a policy that an employee must have a valid "dual intent" visa (H-1B or O-1) before the institution will file a PERM application or an immigrant visa petition on his or her behalf. At the time they come to the U.S., J-1, F-1, TN and E-3 visa holders, for example, are required to have the intention of returning to their home country upon the completion of their temporary purpose in the U.S. However, it is legal for an individual to change his or her intentions once he or she has been in the United States. Green card applications should only be initiated after issues regarding immigrant intention and non-immigrant maintenance of status throughout the green card application have been thoroughly analyzed. Employer procedures should maintain flexibility in this regard to be able to adapt to changes in green card processing.

A well-crafted internal policy regarding immigration sponsorship can and should give guidance and assurance to foreign employees and their supervisors. The policy can also protect the university from charges of favoritism and even discrimination. As with all internal policies, policies regarding immigration should be reviewed and updated on a regular basis to ensure compliance with changing laws.

Howard D. Shapiro is a partner in the Immigration Practice at Mitchell Silberberg & Knupp LLP, a Los Angeles-based law firm that is celebrating its 100th anniversary this year. He can be reached at 310-312-3252 or hds@msk.com.


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