IMPORTANT NOTICE
Sections 5.5, 5.6 and 5.7 are currently under review.
Please contact oiss@unh.edu for clarification.
UNH Policies and Procedures for Sponsorship of Foreign Nationals for US Permanent Residence (Obtaining a "Green Card")
1. Preamble
The University of New Hampshire attracts a number of outstanding scholars from around the world to study, conduct research, and teach. Some of these are students, but a large number of scholars serve with distinction as members of the faculty and professional staff.
These scholars begin their employment at UNH in temporary, non-immigrant work status such as F-1, J-1, H-1B, or TN. In addition to holding temporary, non-immigrant status, most also are in temporary positions. There are faculty (either tenured or tenure-track) and professional staff at UNH, however, whose immigration status is temporary but who may qualify for U.S. permanent residence through employer- or self-sponsorship.
This document outlines University of New Hampshire policies and procedures for the sponsorship of foreign faculty, researchers, and Professional, Administrative or Technical staff for U.S. permanent residence as approved by the University President. It is intended for use by UNH departments with employees in temporary, non-immigrant work status whom the department wishes to retain on a permanent basis. It should be consulted and incorporated into any negotiations regarding University sponsorship for permanent residence which may take place at the time of initial hire or thereafter.
Please note: The policies outlined in this document have been proposed based on current immigration law as established by the Immigration and Naturalization Act of 1990, as amended. U.S. immigration law is subject to change and amendment by Congress, however. Therefore, this policy is subject to revision by the University as new immigration legislation is enacted or the university administration determines that changes are necessary.
2. A Brief Overview of U.S. Immigration
2.1 Individuals immigrate to the United States in a variety of ways: through close family members who are United States citizens or permanent residents; under the sponsorship of employers who offer them permanent jobs, by establishing that they are individuals with extraordinary abilities which will benefit the national interest of the United States; through employment creation and investment; as refugees or asylees; under special diversity programs; or through other miscellaneous categories as established by executive order of the President of the United States. What follows is a definition of non-immigrant versus immigrant status; the use of these immigration categories for employment at UNH; and information regarding UNH policies and procedures for the sponsorship of an employee for U.S. permanent residence.
2.2 THE NON-IMMIGRANT CATEGORIES: The following are a few of the many non-immigrant categories which can be used to authorize temporary employment in the U.S. for foreign nationals. The categories listed are those which are most commonly used at UNH.
2.2.1 F-1:Used for international students on assistantships, practical training programs, or postdoctoral appointments (after completion of studies here at UNH or other US institutions). Practical training and/or postdoctoral appointments for individuals in F-1 status are limited to one year, after which they must convert to another appropriate status in order to continue employment.
2.2.2 J-1: Used for Exchange Visitors (may be students, visiting professors, or researchers). J-1 undergraduate students or students in master’s degree programs may participate in “academic training” (analogous to F-1 practical training) for up to 18 months following completion of their degree requirements at UNH or other US institutions. Students who have completed a Ph.D. are eligible for up to 36 months of academic training following completion of their degree requirements. Visiting professors or researchers (that is, non-student categories) in J-1 status may be employed in temporary positions for a maximum of three years (extension to 5-year limit possible under proposed regulations).
2.2.3 H-1B: Used to employ foreign nationals who qualify as individuals engaged in "specialty occupations," defined by immigration regulations as the "professions" (i.e., university professors and other teachers, engineers, systems analysts and other computer professionals, financial analysts and others in advanced business specialties, accountants, lawyers, architects and other service professionals, health care professionals, etc.). The position may be of a permanent nature. However, the employment of the foreign national must be considered to be temporary. An individual may be employed for up to six years in H-1B status, approved in flexible increments not to exceed three years each.
2.2.4 TN (Trade NAFTA): This classification is restricted to nationals of Canada and Mexico, and is limited to specific professions as defined by the North American Free Trade Agreement. Admission to the US in TN status is granted in one year increments. The number of years an individual is allowed to remain in TN status is unlimited, provided an application for extension is made each year. TN status is not to be used for permanent employment, however.
2.3. IMMIGRANT STATUS is awarded to foreign nationals who are granted permission to immigrate to the United States under US citizenship and immigration law. The application process is lengthy and complicated. If approved, the foreign national becomes the recipient of immigrant status (versus a non-immigrant status), thus making him or her a Legal Permanent Resident of the US . The foreign national is issued an Alien Registration Receipt Card (commonly known as a "Green Card," or form I-551) which indicates his or her eligibility to reside permanently in the United States and to work without restriction. The terms “immigrant status,” “green card,” and “legal permanent residence” are used interchangeably.
2.4 As outlined previously, individuals immigrate to the US in a variety of ways. The remainder of this document concentrates on the policies and procedures required to immigrate through the sponsorship of the University of New Hampshire as the employer. Employees have the option, however, to file for legal permanent residence on their own or through an attorney (“self-sponsorship”), without university sponsorship.
3. University Sponsorship of a Foreign National for US Permanent Residence through Employment
3.1The process of sponsoring an employee for US permanent residence through employment requires the University to petition the immigration service on behalf of the employee. The individual's eligibility to apply for permanent residence through employment is based upon the approval of the university’s petition, though the two applications can now be filed concurrently. In most cases, this is a three-step process requiring the university to:
- File an Application for Alien Employment Certification (more commonly known as “Labor Certification”)with the federal Department of Labor (DOL); following approval of the DOL application, the university must then
- File an Immigrant Petition for an Alien Worker with the immigration service. Following approval of the Immigrant Petition by the immigration service (or, as is now allowed, concurrent with the university’s filing of the Immigrant Petition), the employee can
- File his/her individual application for adjustment of status to permanent residence with the immigration service, or follow a process called “consular processing” at a US Embassy or Consulate.
3.2 The process of obtaining US permanent residence through employment is complex. Each case requires individual review and analysis along with a thorough knowledge of US immigration law as it relates to immigration through employment (business immigration law). The employee's educational credentials, professional experience, standing within the larger academic community (both nationally and internationally), reputation within the particular field of expertise, the position being offered, the date the position was offered, the requirements of the position, and the individual's previous immigration history must all be taken into consideration. The employer – the UNH College, research institute, or administrative department -- is advised to familiarize itself with the process prior to undertaking a commitment to sponsor an employee for US residence. This is most easily done by contacting the Office of International Students and Scholars (OISS) at 862-1288.
3.3Obtaining permanent residence on behalf of a foreign national is a detailed and time-consuming process which requires a minimum of one year and often as much as two years to three years to complete, depending upon the particular circumstances of the case. In the case of Labor Certifications for tenure-track faculty appointments, failure to act within a reasonable time period may jeopardize the employee's ability to obtain permanent residence and, therefore, to continue uninterrupted employment at the University. If the permanent residence process is delayed too long, the employee's non-immigrant status and resulting work authorization may expire before the residence process is complete, thus requiring the foreign national to depart the US (Note: Even though time is a factor in filing permanent residence cases, all University Human Resources policies related to probationary periods and performance standards must always be followed.)
4. Offering a Position to a Foreign National
4.1 When contemplating an offer of a permanent staff or tenure-track position to a foreign national who is neither the holder of a "green card" nor a US citizen, it is important to understand that many such individuals might expect that the employer will sponsor them for US permanent residence within a reasonable period of time after they begin employment. Therefore, at the time of hire, in order to avoid future misunderstandings, and to protect the University from any claims which may be made by the prospective employee, the department should:
- discuss this matter in detail with the foreign national;
- contact OISS in advance of making any verbal or written agreements with the prospective employee in order to avoid any misrepresentation of University policy; and
- • in consultation with OISS and Human Resources, develop a written agreement pertaining to the University's possible sponsorship for US permanent residence.
4.2 Any agreement entered into by the hiring department on behalf of the University should take into consideration university policies regarding the sponsorship of foreign nationals for permanent residence and UNH Human Resources policies. Furthermore, any agreement should set forth the following:
- the criteria which will be used to evaluate the University's desire to undertake sponsorship;
- a time frame within which the decision will be made; and
- responsibility for the payment of all administrative and legal fees incurred in the process.
4.3 Under no circumstances should the hiring department make any guarantee of sponsorship for permanent residence to the employee. It is impossible for any employer to guarantee that its efforts to secure immigration service approval for immigrant status will be successful, as there are many circumstances which might thwart the University's efforts, such as the employee's personal background and/or previous immigration history. Therefore, the hiring department can only agree to consider sponsoring* the employee for permanent residence.
* The term sponsor in this context means “to support.” In order for a foreign national to be considered by the immigration service for permanent residence through employment, it is necessary for that individual either to be sponsored by an employer (i.e., the employer must have a permanent position which it intends to offer to the employee) or to sponsor himself or herself by filing a petition. (For self-sponsorship, “Labor Certification” and “Outstanding Professor/Researcher” are NOT available; the only possible classifications available for self-sponsorship are “National Interest Waiver” and “Alien of Extraordinary Ability.”) Thus the use of the term "sponsor" refers to the act of lending support to an application by means of a permanent job offer. Depending upon the type of position being offered, the background of the foreign national, and the specific type of immigration case, the University may choose to sponsor or "support" the application for permanent residence by signing certain immigration documents verifying that it is offering the employee a permanent position**. The term “sponsor,” however, does not necessarily commit the University to providing in-house legal services to every qualifying employee. (See section 5.4 for criteria for in-house processing.)
**An offer of a permanent position at the University of New Hampshire does not constitute a guarantee of lifetime employment.
5. University of New Hampshire Policies for Sponsorship of Foreign Nationals for US Permanent Residence
5.1 It is the policy of the University of New Hampshire to consider sponsoring for permanent residence only those employees whose positions meet immigration regulations for the definition of "permanent." That is, the position must be:
- permanent; (i.e., expected to last a minimum of three years into the future); and,
- the employee must intend to remain in the position indefinitely.
Both conditions must apply for the permanent residence process to be considered.
5.2 It is the policy of the University of New Hampshire to consider sponsoring for permanent residence only individuals in the following types of positions:
- tenured or tenure-track faculty members (it is not University policy to support permanent residence petitions for lecturers, instructors, visiting professors, or other temporary or term faculty appointments); and
- non-teaching research positions of a permanent nature (it is not University policy to support permanent residence petitions for visiting scientist/researcher or post-doctoral research positions and other temporary appointments). Only permanent, status positions will be considered.
5.2.1 For those permanent research positions which are grant funded, the University will consider supporting residence petitions only when the department can provide evidence that funding will continue for a minimum of three years into the future.
5.2.2 Other PAT (Professional, Administrative and Technical) positions considered by the University Human Resources to be status positions, permanent in nature, and which require a minimum of a Bachelor’s degree combined with at least three years of experience for entry into the position.
5.3 It is the policy of the University to process only certain types of permanent residence cases in-house. The OISS, after consultation with the department and the employee, shall reserve the right to exercise his or her professional judgment as to whether the case qualifies for in-house processing. In the case of conflicting opinions, the case shall be referred to University General Counsel for review.
5.4 The following types of residence cases will be considered for in-house processing:
5.4.1 Labor Certifications for tenured or tenure-track faculty members within 18 months of the job offer. (Formerly called “special handling.”)
5.4.2 Cases which clearly qualify as "Outstanding Professors or Researchers.”
Note: See section 5.9 for criteria which will be used to prioritize the in-house processing of cases.
THESE SECTIONS (5.5., 5.6 and 5.7) ARE UNDER REVIEW. CONTACT OISS@UNH.EDU FOR CLARIFICATION.
5.5 All other types of permanent residence cases, including those requiring an application for Alien Labor Certification with the Department of Labor, will be referred to outside immigration counsel by the International Faculty and Staff Advisor. The Office of International Students and Scholars maintains a list of approved attorneys for this specific purpose, available on request (not to be confused with the general list of immigration attorneys on the OISS web-site). Payment of all legal fees for outside counsel will be the responsibility of the foreign national.
5.6 Following an initial consultation with the International Faculty and Staff Advisor, and providing that the employee's position qualifies for University sponsorship as outlined above, the employee has the right to retain outside legal counsel rather than utilizing in-house services. In these cases, the department is required to notify the International Faculty and Staff Adv isor of the intent to do so. Payment of all legal fees to outside counsel will be the responsibility of the employee.
5.7 Filing Fees and Associated Charges: UNH is responsible for payment of fees associated with the filing of the immigration form I-140, “Immigrant Petition for Alien Worker.” All other fees remain the responsibility of the employee. The University retains the right to request reimbursement for administrative expenses specific to the processing of any immigration case. Payment of any administrative charges which might be assessed by the University is the responsibility of the employee.
5.8 Authorization to Sign Official Documents:The authority to sign permanent residence-related immigration documents rests exclusively within the OISS. No other persons are permitted to sign immigration documents on behalf of the University of New Hampshire, including a G-28 form, “Notice of Entry of Appearance as Attorney or Representative,” which is a limited power of attorney assigning outside counsel to act on the university’s behalf.
5.9 Priority Ranking of Cases Accepted for Handling “In-House”: The Office of International Students and Scholars reserves the right to prioritize (and, if necessary, re-prioritize) cases for permanent residence as it deems necessary, due to the number of pending cases and staffing constraints. Some of the factors which will be considered in prioritizing cases include:
- whether a given case has a deadline for submission;
- the relative permanence of employment of each case;
- the length of service of the employee at the university;
- the length of time the employee has already spent in H-1B status;
- the length of time the employee can continue to remain in H-1B status;
- the likelihood that a case will be approved;
- the seniority and level of the university position, as determined by salary and other considerations;
- whether the employee has other reasonable options for permanent residence, such as self-sponsorship.
5.10 Beginning the Process:
- The Department Chair and the employee must complete and sign a "Request for US Permanent Residence for a UNH Employee" (available on the OISS website). Please note: The signature of the Department Chair on the request form verifies that the position itself is permanent and that the Department intends to retain the services of the employee on a permanent basis as described above (section 5.2). The employee certifies that s/he plans to remain in the position indefinitely and will not seek other employment (see specific statement on request form).
- The form must be countersigned by the Dean of the College or the Chief Administrative Officer of the Division, and by the Provost.
- The fully completed “Request for US Permanent Residence for a UNH Employee” form must be submitted to the International Faculty and Staff Advisor. No permanent residence process will commence prior to the receipt of the completed form.
5.10.1Once the form has been received, the OISS will contact both the department and the employee to request additional information in order to evaluate the merits of the immigration case.
5.10.2It is the responsibility of the employee and the department to supply the OISS with all necessary documentation for preparation of the immigration case in a timely manner.
