Related policy: CWUP 2-30-115

(1) Searches

In all cases, regardless of visa type, the department must conduct the search as normally required for the position and submit to the appointing authority all usual documentation, as well as obtaining approval to sponsor the visa petition. Because each visa petition is unique, departments and the new employee are expected to work closely with Human Resources (HR) throughout the process.

(2) Department Responsibilities

(A) Each hiring department is responsible for the employment of foreign nationals within their department. HR acts as an agent and representative for university and the employee in the filing of petitions through the Washington State Attorney General’s Office (AGO).

1. At the outset of the search process confirm whether the position is eligible for visa sponsorship. CWU visa sponsorship is restricted to full-time, tenure-track, permanent academic positions only. Grant funded positions are not eligible. Rare exceptions may be made for staff, with the Provost’s or Vice-President’s written approval.

2. Should foreign nationals emerge as viable candidates in the search process, contact with the HR Immigration Specialist with questions or concerns.

3. As a part of the screening process, the search committee will ask the following two questions regarding each applicant’s ability to work in the US. All applicants should be asked at the same stage in the interview process and all answers should be documented:

a. Are you legally authorized to work in the U.S.?

b. Will you now or in the future require ‘sponsorship for an immigration-related employment benefit’?

4. Consult with HR before making an offer if candidate answered “yes” to both of these questions.

5. Obtain written approval for sponsorship from the respective dean and the provost/vp and forwarded to HR in advance of beginning the petition for any type of visa. HR will work with the appointing authority for payment of the related application and legal fees.

6. Be aware of time frames and other restrictions, for example:

a. Developing the visa petition and USCIS processing times combine to create a lengthy process, some of which cannot be expedited. This must be taken into consideration for the hiring timeline.

b. Sponsorship of a visa does not equate to an assurance of reappointment or promotion to a tenured position. All university regulations and policies governing personnel actions are applicable to foreign nationals.

c. Not all costs of the visa process are covered under a sponsorship. In accepting the position and the sponsorship, the candidate must be prepared to pay some specific costs out-of-pocket (e.g., I-485 Adjustment of Status filing & legal fees, medical exams, immunizations, etc.).

d. CWU does not sponsor visas for dependents, therefore the individual bears all costs.

7. Ensure that the new employee:

a. Does not begin working until they have obtained all necessary USCIS approvals as required.

b. Is performing only those responsibilities on the position description.

i. Any change in duties, working conditions, or FTE requires filing an amendment with the USCIS on an H1B visa.

ii. A salary reduction requires an amendment; however, an increase in salary does not.

c. Completes the I-9 process and documentation at HR.

d. Completes the required CWU on-boarding procedures.

8. Be transparent about CWU immigration policy and procedural intentions.

a. Make use of the HR Immigration Specialist as a resource for questions or concerns the department and/or new employee may have and be as pro-active as possible about reporting potential issues so that they may be addressed in a timely fashion.

b. Respond promptly to requests for information and/or documentation from the AGO/HR Immigration Specialist. Help the new employee understand the importance of complying with documentation requests, as well as the prolonged nature of the U.S. visa process.

9. Provide personal courtesies such as housing assistance, information about the local community, and any other appropriate information or assistance the employee needs. The Office of International Studies and Programs and HR can assist in the process as needed.

10. Notify HR when any foreign national leaves CWU employment for any reason.

(3) H1B: Nonimmigrant Temporary Worker in Specialty Occupations

(A) Basic Information

1. Must be employer sponsored.

2. Requires a bachelor’s degree or higher. This degree requirement is common to the industry/job and is normally required by the employer for the position. A professor at the university level is always considered a specialty occupation.

3. Employer must file a Labor Condition Application (LCA, ETA Form 9035) and attest to the occupational classification, wage offered, the prevailing wage, work location(s), and the employment dates. LCA is valid for 18 months.

4. The H-1B visa is valid for three years plus one extension of three years (six years total), though may be extended beyond six years if the petition for permanent residency is in process.

5. Can take six months or more to obtain the H-1B approval.

6. Allows for Dual Intent, i.e., the individual is allowed to be in nonimmigrant status and simultaneously apply for permanent residency.

7. If the individual is already in H-1B status at the time of hire, the visa may be transferrable from the previous employer to CWU.

(B) Other Considerations

1. Adherence to petition processing deadlines is required. Response to any requests for documentation from the AGO should be given top priority.

2. USCIS processing time frames are in constant flux.

a. Any visa petition must have prior approval from the respective dean and provost/vp.

b. H-1B petitions are submitted as soon as possible, and according to deadline priority established by the AGO. However, USCIS will not accept petitions which are filed over six months in advance of the requested start date.

c. Paying a premium processing fee is an option to expedite the petition review. Either party may opt to pay this fee. Contact the HR immigration specialist for details.

d. Complete procedures from HR.

e. The H1B beneficiary should not travel outside the US while the petition is in progress.

3. Once the H1B approval is received, readmission to the US is allowed with the approved H1B, current passport, and current visa stamp.

a. Due to changing immigration policy at the federal level, it is always prudent to check with the US Customs & Border Protection to verify the documents required for readmission prior to departure.

4. H1B visas are employer specific. Any employment outside of CWU requires a separate employer-sponsored H1B.

5. Other income allowable while in H1B status may include:

a. Honorarium if paid by the host institution.

b. Expense reimbursement for costs associated with brief speaking engagements.

c. Summer employment at CWU that is in full alignment with their usual duties.

d. Royalties for a book or invention.

6. If employment is terminated before the end of the H1B period, the university must offer to pay the beneficiary’s return to their last place of legal residence. This funding does not extend to family members or personal belongings.

(4) Permanent Residency (PR) – also known as “Green Card”

(A) CWU will sponsor only tenure-track or tenured faculty positions, with rare exceptions. It can take well over a year to complete the petition filing, particularly in the case of an EB2. Once the permanent residency is approved, it will be another wait for a green card opening to become available. Based on the home country, some waits can be a decade or more. This necessitates H1B extensions until the permanent residency is received and generates the corresponding additional time and legal expense.

(B) General Information

1. EB-1 = Employment-Based Immigration – First Preference

a. Requires a bachelor’s degree or higher.

b. Demonstrated “extraordinary ability” in the profession by meeting or exceeding specific USCIS criteria.

c. Employer must file the I-140 Petition for Alien Worker, for the Outstanding Professors & Researchers category.

d. Most direct path because filing for a PERM is not required.

2. EB-2 = Employment-Based Immigration – Second Preference

a. Requires a Bachelor’s degree or higher.

b. Demonstrated “exceptional ability” in the profession by meeting or exceeding specific USCIS criteria.

c. Employer must file the I-140 Petition for Alien Worker.

d. PERM is required.

1. Requires the employer to conduct recruitment efforts to test the U.S. labor market, which document that the employer has been unable to find qualified U.S. citizen or existing permanent resident workers at the offered wage in the area of intended employment who are able, willing, and qualified for the position. The employer must also attest that the foreign national will not displace a qualified U.S. worker or adversely affect the wages and working conditions of similarly-employed U.S. workers.

2. The documents establishing the recruitment efforts and results are retained by HR in an audit file for 5 years.

e. Plan for a lengthy process - ten months to 3 years or more.

1. Foreign national is able to continue working as long as the H1B status is kept current.

(C) Other Considerations

1. Petition processing deadlines must be adhered to. Response to any requests for documentation from the AGO should be given top priority.

2. USCIS processing time frames are in constant flux.

a. Any visa petition must have prior approval from the respective dean and provost/vp.

b. H-1B petitions are submitted as soon as possible, and according to deadline priority established at the AG’s office.

However, note that the USCIS will not accept petitions filed over 6 months in advance of the requested start date.

c. Paying a premium processing fee is an option to expedite the petition review. Either party may opt to pay this fee. Contact the HR immigration specialist for details.

d. Complete procedures from HR.

3. During the review process for any visa type, USCIS may require submission of additional information through a Request for Evidence (RFE). The RFE is often very detailed, requiring additional internal and external benchmarks and more specific information about the beneficiary. Multiple RFE’s can be issued either simultaneously or sequentially. All requests must be responded to in a thorough and prompt manner. By definition, this extends the visa review process and adds another layer of complexity to the process. Thus, the importance of submitting thorough and accurate information in the initial petition cannot be overstressed.

4. Once the Green Card is obtained, the new permanent resident employee is under no legal obligation to stay with the sponsoring employer.

[Responsibility: BFA; Authority: Cabinet/UPAC; Reviewed/Endorsed by: Cabinet/UPAC; Review/Effective Date: 02/11/2015; 06/13/2018; Approved by: James L. Gaudino, President]