Proposed Permanent Residency Policy

Permanent Residency Policy
Effective Date: 10/04/2005
Revision Date: [       ]
Responsible Office: Reves Center for International Studies

Scope

This policy applies to all schools, departments, and units of the College of William & Mary and VIMS (W&M or “the university”).

The scope of this policy is limited to employment based permanent residency sponsorship by W&M of foreign national employees (employees) of the university.  The policy does not cover sponsorship of permanent residency in which W&M is not the petitioner or sponsor (e.g. family based permanent residency, Diversity Lottery, or self-sponsorship in one of the employment based categories).

Purpose

The purpose of this policy is to define the conditions and process under which William & Mary will sponsor its employees for U.S. permanent residency.

Permanent residency sponsorship is an important tool in advancing two institutional priorities: internationalization of the university and diversification of our faculty and staff body. Accordingly, this policy seeks to help W&M attract and retain the best and brightest faculty and staff from around the world.

Definitions

Labor Certification: Requirement for U.S. employers seeking to employ certain persons whose immigration to the United States is based on job skills or nonimmigrant temporary workers coming to perform services for which qualified authorized workers are unavailable in the United States. For positions including formal classroom teaching duties, the employer does not have to show that there are no qualified, authorized workers available in the United States. Rather, it can secure labor certification by demonstrating that the foreign national it wishes to sponsor, is the best qualified applicant of the pool.

Permanent residency: The right conferred upon a foreign national by the U.S. federal government to reside in the U.S. indefinitely.

Sponsorship: The act of petitioning the U.Ss federal government to confer permanent resident status upon a foreign national.

Background

Permanent residency, sometimes also referred to as “green card” or “immigrant status” permits a foreign national to reside and work in the United States permanently. Several avenues exist through which one may secure permanent residency, one of them being sponsored employment. When an employer sponsors a foreign national for permanent residency, the employer asserts to the federal government that it has a position of indefinite duration in which it intends to employ the foreign national indefinitely. Several categories of employment-based permanent residency sponsorship exist and most require that the employer undergo a recruitment process to establish that it is in the interests of the U.S. labor force to grant the foreign national permanent residency.

In all cases, the process of employment-based permanent residency sponsorship requires that the employer file a petition for alien worker with U.S. Citizenship and Immigration Services. In most cases, an application for permanent labor certification must also be filed by the employer and approved by the U.S. Department of Labor.

William & Mary does not handle filing of labor certification or petitions for permanent residency “in house”. Rather, W&M engages an immigration attorney appointed by the Office of the Attorney General of Virginia to do so on the university’s behalf. Under this arrangement, the attorney represents W&M in the process. The process is coordinated by the Director of International Students, Scholars, and Programs (ISSP) of the Reves Center for International Studies.

Individuals may not engage outside counsel (attorneys) to represent W&M in employment based permanent residency sponsorship where W&M is the petitioner. The authority to authorize an attorney to represent W&M in any matter lies with the Office of the Attorney General of Virginia. However, individuals may engage outside counsel to represent themselves and their interests.

Immigration categories under which W&M may sponsor employees:

  1. Outstanding professors and researchers (EB-1B): The individual has been recognized nationally or internationally as outstanding in a specific academic area and has at least three years of teaching or research in the academic area. This category does not require Labor Certification but recognition must be substantiated by extensive documentation.
  2. Members of the professions holding advanced degrees (EB-2): The individual is in a position that requires an advanced degree (Master's or above) as a minimum requirement and he/she has the advanced degree. Requires Labor Certification.
  3. Aliens of exceptional ability in the arts, sciences, or business (EB-2): The individual has a degree of expertise significantly above that ordinarily encountered in the arts, sciences, or business. Requires Labor Certification. Individuals under this category may also “self-petition” under a national interest waiver. When an individual “self-petitions”, W&M is not the petitioner and that petition exists outside the scope of this policy.
  4. EB-3: Professionals holding a bachelor’s degree, occupying an occupation and position requiring a bachelor’s degree. Requires Labor Certification.

Eligibility of Positions for Permanent Residency Sponsorship

To qualify for permanent residency sponsorship by W&M, W&M must intend to employ the employee in a position that meets the following criteria:

  1. Appointment is full-time, salaried, will meet prevailing wage rate as set by the US Department of Labor, and there is an expectation of continued renewals.
    1. Includes 9, 10 and 12 month positions
  2. Funding for the position must be sustainable. Positions funded by external sources (i.e. “soft money”) must demonstrate a record of sustained external funding and expectations of continued funding.
  3. Position requires a bachelor’s degree (foreign education equivalent acceptable but not combination of education and experience) or higher.
  4. Position is significant and meets institutional needs as documented by department and endorsed by both the department head and the relevant executive employee.
    1. Significance can be signaled by rank and title, FLSA exempt status, or specific expertise.
    2. Executive employees
    3. Instructional faculty: Instructor, Assistant professor or above. This includes clinical faculty or faculty “of the practice”. It excludes adjunct faculty and visiting faculty.
    4. Research faculty: Research scientist, research associate, research assistant professor or above. It excludes post-doctoral appointments and appointments designated as visiting.
    5. Professional and Professional Faculty: All positions are eligible provided the department head and relevant executive employee can document significant expertise that is critical to university functions.
    6. Operational staff: Positions that require a bachelor’s degree or higher are eligible provided the department and senior manager can document significant expertise that is critical to university functions.

Process and Procedure

Outlined below are the general process for permanent residency sponsorship, distinctions in review standard and process for positions with and without formal classroom teaching duties, and costs.

Outline of the General Process

  1. Identification of the employee who seeks permanent residency sponsorship. This is handled by employee and department head in consultation with the Director of ISSP. It is presumed that employees entering tenure eligible faculty positions will be sponsored for permanent residency.
  2. Execution of Permanent Residency Sponsorship and Financial Agreement
    1. Documentation of critical expertise (for professional and operational staff)
    2. Commitment to funding costs of PERM and agreement on remaining costs
    3. Commitment to undergo steps of re-recruitment, including revision of position description if necessary, postings, review of applicants
    4. Signed by employee, unit manager, senior manager (dean, vice provost, or vice president), and Director of ISSP
  3. The Director of ISSP of the Reves Center will request the Office of General Counsel to secure authorization from the Office of the Attorney General to engage outside counsel for the preparation of labor certification and filing of the immigration petition. For non-teaching positions, the preparation for labor certification will also likely involve guiding the university in re-recruitment for the position.
  4. Once the OAG has granted authorization, the Director of ISSP will formally refer the foreign national, and department representative. For teaching faculty cases, the Director of ISSP will request a copy of documents from the recruitment file from the Office of Diversity & inclusion (D&I).
  5. Reves Center coordinates the process. In cases where re-recruitment is required, the revision of the position description, posting of the position, purchase of the advertising, and review of applicants will be handed by the hiring unit in collaboration with the Office of Human Resources and D&I. These steps will be guided directly by the attorney.
  6. Attorney will secure a prevailing wage determination based on the revised position description and if the outcome of re-recruitment renders the employee eligible for sponsorship using labor certification, the attorney will prepare the labor certification application.
  7. Director of ISSP will approve and review the labor certification draft and sign the approved labor certification.
  8. Attorney will prepare the petition for immigrant worker (I-140) and employer support letter and submit them to the Director of ISSP for signature.
  9. If the employee wishes, he/she may engage the same attorney to file the I-485. The university is not involved in this part of the process.

Positions with and without formal classroom teaching duties.

Within the higher education context, the inclusion of formal classroom teaching duties in a position has significant bearing on Labor certification review standard and process. These are outlined below.

Positions without formal classroom teaching duties (Non-teaching positions)

Recruitment requirements: For positions that do not include formal, classroom teaching duties, W&M must follow specific Department of Labor regulations that govern the posting locations and content of the job ad. Because this process is too onerous and expensive to be justified for most searches, this process typically occurs as re-recruitment and is carefully coordinated with the attorney handling the case. Re-recruitment is more localized in its approach, and includes the following locations:

  • Internal posting
  • Posting with the Virginia Employment Commission
  • 2 Sunday newspapers (Daily Press) or 1 Sunday paper and 1 professional journal
  • Plus, at least three more of the following:
    • W&M jobs website
    • Campus placement office (e.g. at ODU, CNU or VCU)
    • Local or ethnic newspaper
    • Job fair
    • Job website (e.g. www.monster.com)
    • Non employer website
    • Radio or TV ad
    • Private employment firm

Review standard for Labor Certification: For a foreign national to meet the labor certification standard to be eligible for permanent residency sponsorship, W&M must establish that the recruitment yielded no minimally qualified U.S. worker willing and able to take the position.

Timeline: The filing of labor certification must occur no earlier than 30 days and no later than 6 months from the date the first recruitment effort started.

Positions with formal classroom teaching duties (Teaching positions)

The standard and process for sponsorship of positions with formal, classroom teaching duties, typically teaching faculty, differs in two key areas from employees without teaching responsibilities.

For purposes of this policy, formal classroom teaching responsibilities are defined as teaching responsibilities formally written into the position description, in which the incumbent is faculty of record for (a) credit-bearing undergraduate or graduate course(s) offered by W&M, and the course/courses is/are offered at least annually.

Recruitment requirements: In conducting the recruitment process for teaching positions, W&M may use its own competitive process provided that it includes a job advertisement in a national professional journal. Federal regulations prescribe specific information that must be contained in the advertisement but the ad may be in print form or in electronic form. If it is in electronic form, it must run for at least 30 consecutive days. In the department, an internal notice must also be posted for 10 days.

Review standard for Labor Certification: In the review of applicants, a foreign national who is deemed the best qualified applicant of the pool would meet the labor certification standard for permanent residency sponsorship. The university does not have to establish that there were no minimally qualified U.S. workers available and willing to take the position.

Timeline: The filing of labor certification must occur no later than 18 months from the date of selection in the recruitment process. For teaching faculty, that date is the date of the letter of intent from the office of the dean of the school. For other positions involving teaching duties, that date is the date of the letter of offer from the hiring unit.

Costs

The costs of permanent residency sponsorship are outlined in the Permanent Residency Sponsorship and Financial Agreement and on the ISSP website. Costs of permanent residency sponsorship include the following:

  • Attorney fees: Fees for the preparation of labor certification, the I-140, and the I-485
  • Government filing fees
  • Miscellaneous fees: Required medical exam, costs of advertising for re-recruitment (if needed), express mail shipping

Costs borne by W&M

  • W&M assumes all costs involved in labor certification. This includes attorney fee, any future government filing fee, costs of re-recruitment (e.g. advertising).
  • These costs are billed directly to the university and forwarded to the appropriate executive employee.
  • If W&M conducts re-recruitment but is unable to meet the labor certification standard, the senior manager of the department still assumes responsibility for those costs.

Costs borne by W&M or the foreign national employee

  • All remaining costs of an employee’s sponsorship are the presumed responsibility of the foreign national employee and will be billed directly to him/her. Under the terms of the Permanent Residency Sponsorship and Financial Agreement, he/she may seek reimbursement of all or some of these costs through his/her department.
    • If the employee resigns from W&M within three years of securing permanent residency through the university, he/she will repay the costs covered by the university for that process, with the exception of costs associated with labor certification.
    • If the employee is dismissed from employment, he/she will not be responsible for repaying any costs incurred.

Costs for dependent family members are the responsibility of the foreign national employee and are not eligible for reimbursement.