Employment of Foreign Nationals

University Policy 602.33

1. Purpose

The employment of foreign nationals is critical to fulfilling Appalachian State University’s responsibility to provide its students with the knowledge and experiences necessary to be constructive citizens of North Carolina and to succeed in our diverse world. To meet these needs, Appalachian State University (“University”) seeks to attract outstanding scholars from around the world to study, conduct research, and teach at the University as students, faculty, and staff.

The sponsorship of foreign nationals for nonimmigrant and immigrant statuses requires a substantial commitment of the University’s resources. The University employs nonimmigrant foreign nationals in accordance with applicable state and federal laws and regulations as well as University and System policies. To ensure compliance with the complicated matrix of laws, regulations, and policies pertaining to employment-based sponsorship and to avoid institutional liability for noncompliance, the University has created this policy and its related procedures.

2. Scope

This policy applies to all foreign nationals who may seek employment at the University regardless of their country of origin or U.S. immigration status, which requires the immigration-related sponsorship of the University to be authorized to work for the University.

3. Definitions

3.1 Non-Immigrant – foreign nationals admitted to the U.S. temporarily for a specific purpose and for a specific time period. Non-immigrant foreign nationals are permitted to work for the University only upon authorization from the U.S. Citizenship and Immigration Services (“USCIS”).

3.2 Non-Immigrant Categories - Includes the following classifications most commonly used: F-1, J-1, H1-B, and TN. Additional classifications can be considered on a case-by-case basis (i.e. E-3 and O-1).

3.2.1 F-1 Student – allows foreign national students to enter the U.S. as full-time students at an accredited college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program. F-1 Students must be enrolled in a program or course of study that culminates in a degree, diploma, or certificate, and the school must be authorized by the U.S. government to accept international students. Under certain conditions and with proper authorization, an F-1 student may be authorized to work. The F-1 process for University students is managed by the Office of International Programs (OIP).

3.2.2 H1-B – this classification applies to foreign nationals who enter the U.S. to work in a “specialty occupation” as defined by immigration law (i.e., university professors and other teachers, engineers, advanced business specialties, lawyers, architects, or physicians). An individual may be employed for up to six (6) years (approved in increments not to exceed 3 years) in an H1-B status and may only work for their sponsor-employer.

3.2.3 J-1 Exchange Visitor – J-1 classification (Exchange Visitors) allows a foreign national to enter the U.S. to participate in an approved program for the purpose of teaching, instructing, lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training or to receive graduate medical education or training. Exchange Visitors may be students, visiting professors, visiting researchers, or short-term scholars. Generally, this category is not utilized for employment, but it may be used for temporary (non-tenure track) positions for a limited period of time depending on the J-1 subcategory. A J-1 Exchange Visitor entering as a Research Scholar or Professor may not hold a tenure-track or tenured position. The J-1 process for those sponsored by the University is managed by the OIP.

3.2.4 TN —This classification is restricted to citizens of Canada and Mexico and is limited to specific professions under the applicable trade agreement. There is no specific limitation on the number of years an individual may be afforded TN status; however, TN status may be denied if the individual intends to stay in the U.S. permanently.

3.2.5 OPT – Optional Practical Training (OPT) is temporary employment that is directly related to an F-1 student’s major area of study. F-1 students may participate in OPT in two ways: (1) Pre-completion OPT that is completed after one full academic year in college, university, conservatory, or seminary that permits students to work in conformity with the regulatory limits on hours or (2) Post-completion OPT that allows up to full-time work after an F-1 student completes their studies.

3.3 Immigrant – an individual that is a permanent resident of the U.S. as well as others that may engage in employment without separate authorization from USCIS. This term is often used interchangeably with the term “green card holder” and “lawful permanent residence.” Such an individual is authorized to work without the need for sponsorship. Immigrant sponsorship refers to the process through which the University supports the desire of the foreign national employee to obtain U.S. permanent residence.

4. Policy Statements

4.1 General

4.1.1 Human Resources Immigration Support (HR) is solely responsible for advising academic and other departments on all pertinent issues relating to employment-based nonimmigrant and immigrant sponsorship of foreign nationals. The Office of International Programs is solely responsible for advising students and exchange visitors who are sponsored by the University.

4.1.2 Academic and other departments shall contact HR before extending an offer of employment to a candidate known to require the University’s employment-based immigration sponsorship to engage in work in the U.S. for the University.

4.1.3 Non-immigrant and immigrant sponsorship are strictly limited to situations in which there is a true employer-employee relationship between the foreign national and the University.

4.1.4 Authorization to proceed with employment-based non-immigrant and/or immigrant sponsorship, particularly sponsorship for permanent residence, shall only occur once approved by the Provost and Executive Vice Chancellor, another Vice Chancellor, or their designee. Such authorization shall only be granted upon full consultation with HR before a process may proceed.

4.1.5 HR is the only office authorized by the University to serve as the signatory on behalf of the University regarding immigration-related applications, petitions, and processes entailing employment-related University sponsorship. OIP is the only office authorized by the University to engage in immigration-related applications, petitions, and processes for F-1 students and Exchange Visitors sponsored by the University.

4.1.6 The University does not guarantee the success of an employment-based immigration application, petition, and/or process. However, it will make a reasonable effort to achieve a positive outcome.

4.1.8 All offers of employment are contingent upon proof of valid work authorization in the U.S. as required by federal law.

4.1.9 The University hiring department will fully and timely cooperate with HR to provide any information or assistance needed for any immigration-related application, petition, or process.

4.1.10 The University reserves the right to determine whether to sponsor, impose limitations on sponsorship, or terminate sponsorship in its sole discretion.

4.2 General Limitations and Obligations

4.2.1 To limit University liability and for purposes of fiscal responsibility, the University shall only sponsor foreign national employees in the following non-immigrant categories: H1-B, J-1, and TN Professional. Any employment-based non-immigrant sponsorship category not listed may only be done with the explicit authorization of the Chancellor or their designee.

4.2.2 While STEM-OPT requires that the employer agree to a training plan, this is not regarded as non-immigrant sponsorship for the purposes of this policy. Only the Provost and Executive Vice Chancellor or their designee is authorized to sign the training plan on behalf of the University.

4.2.3 University employees are prohibited from providing any assistance or counsel regarding immigration matters related to the foreign national employee’s personal interests, their dependents, their spouse or partner, and/or personal applications or petitions.

4.2.4 Any visit by a federal official or representative, such as from the U.S. Department of Homeland Security and its subagencies, the Federal Bureau of Investigation, or the U.S. Department of State, to the University concerning immigration-related matters is to be reported immediately to the Office of General Counsel.

4.2.5 While Academic Affairs sets new hire deadlines and start dates, complying with those deadlines does not guarantee that a foreign national new hire or existing employee who requires immigration-related sponsorship will be eligible to begin on the intended start date should they fail to receive work authorization pursuant to federal law.

4.3 Fees and Costs

4.3.1 The University department, except for those departments within Academic Affairs, hiring a foreign national is solely responsible for all filing fees and other costs associated with immigration-related petitions and applications for which the University serves as the applicant or petitioner.

4.3.2 Filing fees associated with a request for premium processing service shall be paid by the foreign national employee with the exception noted in Section 4.3.3 below.

4.3.3 The University will only pay the filing fee associated with a request for premium processing service when there is a legitimate and articulated university business need for expedited processing. Any request for the University to cover the cost of premium processing shall be made to the Provost and Executive Vice Chancellor for approval. If approval is granted, the hiring department is responsible for paying the filing fees.

4.3.4 The University shall not reimburse or pay for any personal filings, including any self-filed application or petition (including OPT and STEM-OPT) for any foreign national employee, fees associated with receiving a visa stamp from the consulate in the foreign national’s home country, or for any filings related to their dependents, spouse, or partner.

4.4 Non-Immigrant Sponsorship

4.4.1 University shall only sponsor for non-immigrant status full-time teaching faculty, certain non-faculty research positions, and other professional employees in positions for which a master’s degree or higher (or its equivalent) is the minimum educational requirement. Any exception, such as sponsorship for a part-time appointment or for a position that requires a bachelor’s degree only, requires the prior approval of the Chancellor or their designee.

4.4.2 Search Committees and hiring departments shall not promise non-immigrant sponsorship to a candidate during the recruitment process for any position.

4.4.3 HR, in consultation with the Provost or appropriate Vice Chancellor, shall determine whether to proceed with non-immigrant sponsorship after accounting for available resources, legal matters, timing, and other considerations.

4.4.4 The hiring department shall notify HR prior to any change in the status, duties, job location, pay, and/or hours of a sponsored employee.

4.4.5 The hiring department will notify HR prior to any termination of a sponsored employee. In the event a sponsored employee is to be terminated before the expiration of their H1-B/TN status, HR will notify USCIS in writing prior to termination, provide a copy of the letter to the foreign national, and retain a copy of that letter.

4.4.6 Requests for non-immigrant sponsorship of a new employee or the extension of non-immigrant sponsorship for an existing employee with all required supporting documentation should be submitted to HR at least three (3) months prior to the prospective employee’s target start date or prior to the expiration of the current employee’s status.

4.4.7 HR will thoroughly review for accuracy any documentation, petition, or application prior to filing with the applicable federal or state agency.

4.4.8 HR will retain the Department of Labor Public Access File and prepare it with the full cooperation of the relevant academic or other department.

4.4.9 In the event the University receives an “Intent to Deny” or “Denial” from USCIS concerning a petition filed on behalf of a foreign national employee, the University has no legal obligation to respond to the Intent to Deny or to appeal the Denial, if the basis for such decision is an issue personal to the foreign national employee and is unrelated to their employment or the University.

4.5 Sponsorship for Permanent Residence (“Immigrant Sponsorship”)

4.5.1 The University shall only sponsor for permanent residence foreign nationals in permanent full-time faculty positions for which a master’s degree or higher is the minimum educational requirement. These positions include assistant professors, associate professors, or professors who are either tenure-track or tenured and research associates. SHRA and EPS positions are not eligible for sponsorship for permanent residence. Exceptions may only be granted by the Chancellor.

4.5.2 Prior to consideration for sponsorship, both the University and the employee must have reasonable expectations that employment will be on a long-term basis.

4.5.3 It is at the sole discretion of the University whether to proceed with immigrant sponsorship or not. Academic departments shall not promise immigrant sponsorship or the attainment of permanent residence to any applicant or employee during or after the recruitment process. Timeframes for filing any such petition are at the sole discretion of the University; Academic departments shall not promise or make any assertions that faculty will be sponsored by any specified period of time.

4.5.4 The University reserves the right to deny a request for sponsorship, suspend, or terminate the permanent residence process at any time if an employee has failed to meet the Department or College’s academic standards, if there is an active investigation or disciplinary action, or if the employee’s employment status with the University changes.

4.5.5 The University will only consider pursuing sponsorship for permanent residence pursuant to the following employment-based immigrant processes:

1. Applications for Permanent Employment Certification (“PERM”) in accordance with the Optional Special Recruitment and Documentation Procedures for College or University Teachers (20 C.F.R. § 656.18); or
2. In exceptional circumstances only, Immigrant Petitions on behalf of an Outstanding Professor or Researcher (INA § 203(b)(1)(B); 8 C.F.R. § 204.5(i)(3)(ii)).

4.5.5 All requests for sponsorship for permanent residence shall be submitted to HR via the Permanent Sponsorship Request Form. Request forms shall be completed by the employee seeking sponsorship and forwarded to their Department Chair.

4.5.6 Upon reviewing the Sponsorship Request Form and associated materials, the Department Chair shall complete the recommendation section and forward the form and associated materials to the Dean.

4.5.7 Upon reviewing the Sponsorship Request Form, materials, and the Chair's recommendation, the Dean shall complete the recommendation section and forward the form to HR with a copy to the Provost and Executive Vice Chancellor.

4.5.8 The final decision to pursue permanent sponsorship shall be made by the Provost and Executive Vice Chancellor upon consultation with HR.

4.5.9 For faculty providing classroom teaching, the University will pursue immigrant sponsorship through the Optional Special Recruitment and Documentation Procedures for College and University Teachers, also known as PERM Special Handling, when permissible by law.

4.5.10 In exceptional circumstances, as an alternative to PERM Special Handling, the University may consider sponsorship through the Outstanding Researcher and Professor classification (EB-1). However, the University shall not file an EB-1 petition until the employee has completed at least three (3) years of service in their current permanent position at the University. Any exceptions require the approval of the Provost and the Chancellor.

4.5.11 Should the University receive an “Intent to Deny” or “Denial” from USCIS concerning a petition filed on behalf of a foreign national employee, the University has no legal obligation to respond to the Intent to Deny, or to appeal the Denial, if the basis for such decision is an issue personal to the foreign national employee and is unrelated to their employment or the University.

4.5.12 The University shall not assist any foreign national employee with the preparation of an I-485 Application to Adjust Status to Permanent Resident or an application for consular processing of an immigrant visa. Further, the University shall not reimburse or pay for any costs or fees associated with the preparation of an I-485 or an application for consular processing of an immigrant visa.

4.5.13 An employee is always permitted and able to apply for permanent residence on their own without sponsorship of the University. University sponsorship is not a requirement for permanent residence status. In the event an employee files for permanent residence on their own with a private attorney, the University shall not reimburse the employee or pay for any filing fees, costs, or attorney fees. Any private counsel hired by the employee is not permitted to represent the University in the immigration process.

4.5.14 If an employee does not qualify for university sponsorship for permanent residence, the employee may still be able to petition on their own behalf, through sponsorship by a family member, or self-sponsorship based on the focus of their work, such as a National Interest Waiver petition.

4.6 Use of Outside Counsel

4.6.1 Legal representation of the University requires express authorization in accordance with the University’s Legal Services Policy, the UNC System Policy on Legal Affairs, and the UNC System Regulation on Engagement of Private Counsel and Designation of Litigation Counsel.

4.6.2 Without the express prior written permission from the University’s General Counsel, no University employee may sign a Form G-28 Notice of Appearance as Representative or Attorney.

4.6.3 An employee is always free to obtain their own counsel to represent their personal interests in the immigration process at their sole expense. The University is not permitted to reimburse or pay the private attorney’s fees, or any costs associated with the private attorney’s representation of the employee.

4.7 Obligations of the Foreign National Employee

4.7.1 To respond in a timely manner to all requests from HR for documentation or a meeting to discuss any employment-related immigration matter.

4.7.2 To provide unaltered and legible copies of original documentation requested by HR, including newly acquired U.S. visa stamps, I-94 departure records, and other immigration documents/notices issued to the sponsored employee by the U.S. Department of State, U.S. Department of Homeland Security, or U.S. Department of Labor as soon as possible.

4.7.3 Notify the U.S. Department of Homeland Security and the University of any change in U.S. address within ten (10) days of moving.

4.7.4 Ensure non-immigrant status is maintained by acting in accord with their non-immigrant status and timely requesting continued sponsorship from their hiring department.

4.7.5 Timely notify HR of any changes in work location, position, job duties or requirements, work hours, or employment status prior to the change.

4.7.6 Assume responsibility for maintaining the lawful authorization of any dependents to be in the U.S.

4.7.7 To understand the sponsorship for which they are beneficiaries, including but not limited to filing dates, current status, expiration of status, priority dates, dependent requirements, obtaining a visa stamp at a home country consulate, Visa Bulletin information (if applicable), etc.

Additional References

UNC Policy Manual, The Code, Section 502

Foreign National Intake Questionnaire

Sponsorship for Permanent Residence Request Form

Administrative Unit Contact

Office of Human Resources, Immigration Services
Phone: 828-262-6489
Email: immigrationsupport@appstate.edu

History

Issued: September 27, 2017

Revised: March 31, 2025