Footnotes

FOOTNOTES

FN1. Mark B. Rhoads & Helen L. Konrad, Immigration Law: Issues for Faculty and Staff, 2007 Update NACUA, 2007, at 1. Other types of immigration status sometimes used for university employees are: B-1 status for paying honoraria to foreign nationals lecturing or attending meetings of university boards or committees; F-1 student status for allowing students to obtain practical training in their fields of study; J-1 status for exchange visitors, short-term scholars, medical residents, and others; O-1 status for individuals of extraordinary ability; and TN status for citizens of Canada and Mexico under the NAFTA Treaty.

FN2. The approval also specifies an ending date, except in the case of F-1 (student) or J-1 (trainee) status. Instead of a specific ending date, students and trainees generally have permission to remain in the United States for the “duration of status,” a term of art loosely meaning making “reasonable progress towards their degree”. The university’s Student and Exchange Visitor Information System (SEVIS) officer must report a student’s departure from the school to USCIS, whether the reason for leaving is graduating, transferring to another school or dropping out. Once the report is submitted, the former student is no longer in status, and therefore no longer allowed to remain in the United States, unless he has taken steps to remain through some other means. Students have a 60-day grace period to leave, but can usually be authorized to remain for a year beyond graduation by obtaining an optional practical training employment authorization document (OPT EAD). The OPT EAD may only be obtained with the assistance of the graduating student’s SEVIS officer. An individual with an OPT EAD is still in F-1 status, subject to continuing supervision by the SEVIS officer. Appendix A.

FN3. An H-1B classification may be granted to an alien who will perform services in a specialty occupation which requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States, and who is qualified to perform services in the specialty occupation because he or she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation. 8 CFR §214.2(4)(i)(A)(1).

FN4. See, generally 8 CFR 214.2(h).

FN5. First, the employer must submit an online Labor Condition Application (“LCA”) to the Department of Labor (DOL), available at http://icert.doleta.gov/ .

Once the LCA application has been certified, the university must fill out and submit to USCIS the Petition for Nonimmigrant Worker (Form I-129), available at http://www.uscis.gov/files/form/i-129.pdf, with the H Classification and H-1B Data Collection and Filing Fee Exemption Supplements attached. These forms provide information about the employer, employee and position to be filled, and help the employer determine whether it is exempt from a portion of the filing fees. The university must also post a notice for 10 days announcing that it is hiring an H-1B worker in two conspicuous places.

FN6. The current fee for filing the Form I-129 is $320, plus an additional $500 “fraud detection” fee. These should be filed as two separate checks, rather than a single check for $820. USCIS charges $1,000 for expedited processing, which is necessary only if the application must be processed within fifteen (15) days. 8 CFR § §103.2(f).

FN7. A foreign national’s H-1B application will be denied if the person has failed to maintain immigration status. A person fails to “maintain status” if he has overstayed or otherwise violated his status. If he has overstayed his F-1 or any other status, he will have to leave the United States and obtain an H-1B visa in his home country before he will be able to return to the United States in H-1B status. If he has overstayed between 181-364 days, he is statutorily barred from returning to the U.S. for at least three years. If he has overstayed by a year or more, he is statutorily barred from returning for at least ten years. Even if his overstay is less than 180 days, he must demonstrate good cause for the overstay to the consular officer, or the officer may refuse to exercise the discretion necessary to issue a visa. See INA § 212(a)(9)(B)(i).

FN8. See redacted samples of a visa, I-94, I-20 and Notice of Action Appendix B, C, D and E.

FN9. For example, an H-1B employee may work as a visiting professor at a foreign university, staying outside of the United States for six months or so. If he keeps careful track of this time, he will be able to demonstrate that even though USCIS authorized him to be in H-1B status for a total of six years, he in fact was only present in the United States in H-1B status for five and a half years. He will then be eligible for an additional six months of H-1B status after the ostensible six year period.

FN10. H-1B status can be extended in one-year increments beyond the normal six-year maximum if the employee has started the permanent residence application process at least 365 days before his sixth anniversary in H-1B status. See Section 106(a) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), Pub. L. No. 106-313, §§101–16, http://history.nih.gov/research/downloads/PL106-313.pdf 114 Stat. 1251, 1251–62 (8 U.S.C. 1184 note). If the employee cannot complete the permanent residence process because he is from a country such as China or India that is affected by quotas, the H-1B status can be extended in three year increments. See INS Memorandum, M. Pearson, “Initial Guidance for Processing H-1B as Affected by AC21” (June 19, 2001), published on AILA InfoNet at Doc. No. 01062031 (posted June 20, 2001), at. 4. This memorandum sets forth policy regarding AC21, for which regulations have not yet been promulgated. A copy is attached as Appendix F., courtesy of the American Immigration Lawyers Association.

FN11. H-1B portability has limitations. A provision unique to H-1B extensions allows the employee to work for 240 days while awaiting approval of the new employer’s H-1B petition, with no adverse immigration consequences. But, if USCIS ultimately denies the H-1B application, the employee will be deemed to have been “out of status” during the 240 days, and must immediately leave the country. While this “innocent” overstay is not be a bar to re-entry, it will always be an issue listed in the employee’s immigration history, and will cause inevitable delays during the employee’s consular processing and return from international travel.

FN12. See, generally 8 CFR §214.2 (h).

FN13. See discussion of various immigration documents under Hiring Foreign Faculty, supra.

FN14. This is particularly true for individuals with degrees in the fields of chemistry or engineering, for whom security checks by the U.S. consulate, called “Visa Mantis” checks, can delay the issuance of visas for weeks or sometimes months.

FN15. A foreign national can hold both “adjustment applicant” and H-1B status at the same time. A university might adopt this “belt and suspenders” approach to ensure that the foreign national remains legally employed. But this approach can be costly because the regulations require the university, not the faculty member, to absorb the cost of renewing the faculty member’s H-1B status during the pendency of the adjustment application.

FN16. 8 CFR § §214.2(h)(11)(i)(A).

FN17. 20 CFR § 665.731(c)(7)(i); 8 CFR 214.2(h)(11)(i)(A); see also Administrator, Wage and Hour Division v. Ken Technologies, Inc, 2003-LCA-00015 July 18, 2003.

FN18. 8 CFR §214.2 (h)(4)(iii)(E).

FN19. 8 § CFR §214.6(d).

FN20. 8 § CFR §214.6(e).

FN21. Canadians do not have to get a visa in advance. They can apply at the U.S. port of entry, which is actually in Canada at certain Canadian airports, with an employment offer letter, detailed job description, and documentation of the required education and experience. Mexicans must take the extra step, before they travel, of obtaining a visa from one of the U.S. consulates in Mexico. 8 CFR §214.6(d) (3).