Employment of Foreign Nationals: Difference between revisions

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Policy 602.33
University Policy 602.33


== Introduction ==
== 1. Purpose ==
1.1 Appalachian State University (“University”) attracts a number of outstanding scholars from around the world to study, conduct research, and teach at the University.  Some of these individuals are students, but a large number of scholars serve with distinction as members of the faculty and professional staff sponsored by the University.


1.2 Some foreign nationals begin their employment at the University in temporary, non-immigrant work status such as J-1, H-1B, TN or F-1 (OPT – work authorized). In addition to holding temporary, non-immigrant status, most are also in temporary positions.  The University may offer permanent residence, “Green Card,” sponsorship only to full-time, permanent employees in academic job classifications (tenure track faculty members) at the University.  The qualifying positions include professor, associate professor, assistant professor and research associate (a department must have secured funding for at least three years in the future for the University to sponsor a research associate). The University does not sponsor non-teaching professional staff or visiting lecturers for permanent residence. Obtaining permanent residence for a University employee requires a substantial commitment of University resources. Therefore, the University will not begin the process until after a faculty member has been employed for one full semester.  In accordance with federal requirements, the University will sponsor a foreign national for permanent residence only when there is a reasonable expectation that the individual will continue to be employed by the University for a substantial period of time (generally three years or longer).  
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.


1.3 This policy outlines procedures for the employment-based sponsorship of employees for U.S. permanent residence as approved by the Chancellor. It is intended for use by University departments with employees in temporary, non-immigrant employment-based classifications 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.
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.


== Scope ==
== 2. Scope ==
2.1 This policy applies to all EHRA non-faculty research associates and tenure track faculty members  hired at the University that have completed one full semester of employment. (EHRA non-faculty and tenure-track faculty members)


== Definitions  ==
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.


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; etc. What follows is a definition of non-immigrant versus immigrant status; the use of these immigration categories for employment at the University; and information regarding the University’s policies and procedures for the sponsorship of an employee for U.S. permanent residence.
== 3. Definitions ==


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. of foreign nationals through the sponsorship of an employer or authorized organization/entity. The categories listed are those which are most commonly used at the University.
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”).


=== F-1 ===
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).
:Used for international students on assistantships, or practical training programs (after completion of studies at the University or other US institutions). Practical training for individuals in F-1 status is limited to twelve and up to twenty-nine months depending on the student’s field of study. In order to continue employment, the individual will need to provide proof of continued authorization, which typically is the result of a change to a different nonimmigrant classification based on the sponsorship of the University.  


=== J-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).  
:Used for Exchange Visitors (may be students, visiting professors, researchers or short-term scholars). 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 the University or other US institutions. J-1 students who have completed a doctoral program are eligible for up to 36 months of academic training following completion of their degree requirements. Visiting professors or researchers (both non-student categories) in J-1 status may be employed in temporary (non-tenure track) positions for a maximum of five years. Short-term scholars may be employed in temporary positions for a maximum of 6 months. A J-1 Exchange visitor may not hold a tenure-track position.  


=== H-1B ===
: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.  
:Used to employ foreign nationals who qualify as individuals engaged in "specialty occupations," as defined by immigration law (i.e., university professors and other teachers, engineers, advanced business specialties, lawyers, architects, physicians). An individual may be employed for up to six years in H-1B status, approved in flexible increments not to exceed three years each.  


=== TN (Trade NAFTA) ===
: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.
:This classification is restricted to citizens of Canada and Mexico, and is limited to specific professions as defined by the North American Free Trade Agreement (“NAFTA”). There is no specific limitation on the number of years an individual may be afforded TN status; however, TN status may be denied on the basis of immigrant intent on the part of the sponsored individual as he or she is expected to retain the intent to return to his or her home country.  


=== Immigrant Status ===
: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.  
:The terms “immigrant status,” “green card,” and “lawful permanent residence” are often used interchangeably. The process of applying for lawful permanent residence is lengthy and complicated. The process may be delayed through no fault of the University and approval is never guaranteed. Once a permanent resident is issued a Permanent Resident Card (commonly known as a "Green Card," or Form I-551), this card is evidence of his/her eligibility to reside permanently in the United States and to work without restriction.


== Policy and Procedure Statements  ==
: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.


=== Sponsorship for Permanent Residence ===
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.
4.1.1 It is the University’s policy to consider sponsorship for permanent residence only for those employees whose positions meet immigration regulations for the definition of "permanent." The University reserves the right to suspend or terminate the permanent residence process at any time when an employee has failed to meet the Department or College’s academic standards or the employee’s employment status with the University changes. The following criteria shall be met for an individual to be sponsored by the University for permanent residence:
#The position must be permanent in nature and must be full time. (Students,  visiting scholars, visiting faculty, temporary and part time employees are not eligible for sponsorship). Pending promotions must be actually finalized prior to the paperwork for sponsorship being processed.
#The hiring department at the University must intend to employ the individual for at least three more years.  Funding for the position for a three-year period must be guaranteed.  The permanent residence sponsorship process may take at least three years, and the job should be available to the applicant at the end of this three-year process.  
#The approval of the dean and departmental chair must be obtained. Although general information regarding permanent residence procedures and categories may be discussed beforehand, the Office of International Education and Development (OIED) will not initiate University-sponsored permanent residency processes unless it considered appropriate by OIED and until approval is received from the dean and departmental chair.
#The Chancellor or his/her designee, has delegated the responsibility on behalf of the University to complete, sign and submit documents related to employment-based immigration matters for the University to OIED.


=== Approval of Required Documentation ===
== 4. Policy Statements ==
4.2.1 All paperwork related to University-sponsored permanent residency must be approved and submitted by OIED to ensure accuracy and consistency of the information that is provided to the US Government and its agencies. Please note that an employee is always free to obtain his/her own attorney to represent his/her personal interests in the immigration process at his/her own expense. However, any private counsel hired by the employee is not permitted to represent the University in the immigration process.


=== Alternatives to University Sponsorship ===
'''4.1 General'''
4.3.1 If an employee does not qualify for University sponsorship for permanent residence, the employee may be able to petition on his/her own behalf or through sponsorship by a family member.


=== Sponsoring an Employee for Permanent Residence ===
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.
4.4.1 The process of sponsoring an employee for 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. In most cases in the University context, this is a three-step process requiring the University to complete the following:
#File an Application for Alien Employment Certification (more commonly known as “Labor Certification”) with the Department of Labor (DOL);
#Upon certification by DOL of the application, file an Immigrant Petition for an Alien Worker with the United States Citizenship and Immigration Services (USCIS).
#Following approval of the Immigrant Petition by the USICS (or filed concurrently with the University’s filing of the Immigrant Petition if eligible to do so), the employee can then file his/her individual application for adjustment of status to permanent residence with the immigration service, or follow a process called “consular processing” of an immigrant visa application.


=== Fees ===
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.
4.5.1 The fees and costs associated with obtaining permanent residency can be extensive. The University will only pay the standard filing fee for the Immigrant Petition for an Alien Worker. The employee may pay the optional expedited processing fee if the employee wishes. All other costs such as legal fees and medical fees associated with obtaining permanent residency are solely the responsibility of the employee.


=== Sponsorship ===
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.
4.6.1 The University may pursue sponsorship on behalf of an employee based on other immigration Categories, such as Outstanding Researcher, but only after OIED reviews and evaluates the viability of pursuing sponsorship on other categories.  


=== Process of Obtaining Permanent Residence ===
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.
4.7.1 The process of obtaining permanent residence through employment is complex. Each case requires individual review and analysis along with 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/or the individual's previous immigration history must all be taken into consideration. The hiring entity – the University college/school, academic department, or research unit – is advised to familiarize itself with the process prior to requesting the University undertake a commitment to sponsor an employee for permanent residence. This is most easily done by contacting the OIED’s Director of International Student and Scholar Services and Outreach at 828-262-2046.


=== Obtaining Permanent Residence on Behalf of a Foreign National ===
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.
4.8.1 Obtaining 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 Applications for Permanent Employment Certification 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 the University’s policies related to performance standards as articulated in the Faculty Handbook must always be followed.)


=== Offering a Position at 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.
4.9.1 When contemplating an offer of a tenure or tenure-track position to an individual who is not independently work authorized, it is important to understand that many such individuals might expect that the employer will sponsor them for 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 hiring department should:
#Discuss this matter in detail with the potential employee; and
#Contact OIED”s Director of International Student and Scholar Services and Outreach in advance of making any verbal or written agreements with the prospective employee in order to avoid any misrepresentation of University policy.


4.9.2 Any agreement entered into by the hiring department on behalf of the University should take into consideration University policies regarding the sponsorship for permanent residence and Academic Affairs/Human Resources policies
4.1.8 All offers of employment are contingent upon proof of valid work authorization in the U.S. as required by federal law.


4.9.3 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 that 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 for the University to consider sponsoring the employee for permanent residence.
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:
<ol style="list-style-type: decimal;">
<li>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</li>
<li>'''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)).</li>
</ol>
 
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 ==
== Additional References ==


== Authority ==
UNC Policy Manual, The Code, Section 502
:[http://www.northcarolina.edu/apps/policy/index.php?pg=dl&id=4428&inline=1&return_url=%252Fpolicy%252Findex.php%253Fpg%253Dtoc%2526id%253D4072 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<br>
Phone: 828-262-6489<br>
Email: immigrationsupport@appstate.edu


== Contact Information ==
== History ==
:Director of International Student and Scholar Services and Outreach
:Office of International Education and Development
:263 Locust Street, PSU, Suite 321
:Boone, North Carolina 28608-2083, USA
:Phone:  828-262-2046


== Original Effective Date ==
Issued: September 27, 2017
:September 27, 2017


== Revision Dates ==
Revised: March 31, 2025

Latest revision as of 18:05, 4 April 2025

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

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