WELCOME! Permanent

Residence: An ISSS

WorkshopOctober 15, 2008

Introducing the “A Team”

Anne L. Butler, ISSS Director

Anna L. Stuart, ISSS Administrative Coordinator

Ann L. Lipson, Attorney at Law

Agenda PR Overview and Pathways UCSC Visa Policy and the

exception process How to initiate PR petitions Working with ISSS and outside

immigration counsel Review of new UCSC PR Forms Case studies Q&A

Learning Objectives

Understand the various PR pathways: know what elements must be present in order to pursue each pathway

Understand how to navigate the PR process at UCSC: how to work with ISSS and outside attorney

PR Overview

Presented By Anne L. Butler

What is Permanent Residence?

Immigrant visa Immigrant = Green card = Resident

Alien = Lawful Permanent Residence

Requires offer of permanent employment Reasonable expectation of indefinite

employment for professors Reasonable expectation of

guaranteed funding for at least three years for researchers

Employment must be full-time

Definition: Non-immigrant Visa

Temporary; for work purposes

Tied to specific employer – FT/PT

Alphabet Soup H-1B (dual-intent) O-1A (dual-intent) TN E-3

Who Is a Permanent Resident?

Someone who has acquired the legal right to remain in the U.S. indefinitely but is not a U.S. citizen

Has similar, but not all, rights and privileges as a U.S. citizen Employment, Voting, Selective

Service

Advantages of PR for UCSC:

Highly effective recruitment and retention tool

May enhance our ability to obtain government grants

Cost savings

Continuity of service

Advantages of PR for Foreign

National: Significant quality-of-life enhancements: Long-term career planning Spouse & children may work Resident tuition for children Eligible for own federal grant funding Dependents don’t “time-out” of

derivative visa status at the age of 21 Eligible for mortgage and other personal

financial opportunities Ease of travel – including business travel Freedom to work elsewhere

Government Agencies & PR

Dept of Labor (DOL) for PERM labor certification cases

only

Dept of Homeland Security (DHS) US Citizenship & Immigration

Services (USCIS) Customs and Border Protection

(CBP)

Dept of State (DOS)

USCIS Eligibility Paths for Permanent Resident

Status Family membership

Employment based on a shortage of workers in an occupation or on the special skills, knowledge and ability of the applicant

Through investment that creates employment for U.S. workers

The Visa Lottery

Humanitarian reasons (refugees, asylum seekers)

USCIS Requirements for

Employment-Based PR Position must be

“permanent” – indefinite or unlimited duration

Position must be full-time

Position must require professional-level credentials

UCSC Visa Policy

UCSC Visa Policy

Academic Personnel Policy Campus Academic Personnel

Manual (CAPM)

Input from ISSS Must meet USCIS

requirements Must minimize chance of:

DOL audit Employment lawsuits

UCSC Visa Policy UCSC may sponsor employment-based

immigrant visas for:

Permanent tenure-track faculty members

Researchers in Professional Researcher Series at the Associate Researcher level or higher, if:

employment is full-time funding is guaranteed for minimum of 3

years; recruitment has occurred within 6

months Scientist Series – UARC only by pre-

approved exception

Exceptions to UCSC Visa Policy

Requires approval by ISSS Director Review for legal “bright line”: must

meet all USCIS requirements Advise AVC on risk that exception may

pose

Requires approval by AVC Academic Personnel and EVC Determine if exception is required to

support academic mission Determine if risk is acceptable

Exceptions to UCSC Visa Policy

An exception to visa policy may not be part of a job offer

An offer of sponsorship may not be used to “sweeten” a low-wage position

An exception to policy is not appropriate as an automatic “next-step” when a non-immigrant visa expires

PR Pathways

PR for Tenure-track/Tenured

Faculty & Researchers

Presented by Ann L. Lipson

6 Possible Pathways to PR Status

for UCSC Faculty & Researchers1. PERM

2. Outstanding Professor3. Outstanding Researcher (or

Researcher with Exception)4. Self-petitioning “Alien of Extraordinary

Ability”5. Self-petitioning “Alien whose work is in

the National Interest”6. Marriage to US citizen

Pathway 1: PR for Classroom Professors

Via PERM PERM

Program Electronic Review Management system

Labor Certification application

PERM/Special Handling College/University Teachers

only

Mandatory PERM Requirements Professor must be paid at or above

the prevailing wage as determined by on-line wage library confirmed by DOL in Sacramento

Must be completed within 18 months of date of selection

Signed letter from Professor accepting job offer, with date of selection

PERM Competitive Recruitment Requirements

Candidate must be more qualified than any other U.S. workers who applied for the job as evidenced by completion of UCSC competitive recruitment, Parts A, B and C

Notice of job opening to Labor Relations for forwarding to UCSC Faculty Association

Minimum of 1 National Professional Journal Print Ad (campus omnibus ad might be sufficient) Ad tear-sheet and proof of payment

Copies of on-line advertising

Recruitment Report

PERM Recruitment Dossier

Copy of job offer letter (selection document)

Prevailing wage request determination from EDD

Copy of notice to Labor Relations for forwarding to Faculty Association, and copy of letter from Labor Relations confirming forwarding

Recruitment report documentation

PERM Recruitment Report Documentation

Signed recruitment report from hiring authority, supported by the following: Recruitment results, part A, B and C Copies of all ads Statement attesting to professor’s

credentials Copies of academic credentials and

letters of reference

UCSC retains for 5 years

PERM Process Step 1: PERM

UCSC files PERM application on-line with DOL

Based on prior recruitment

Step 2: I-140 UCSC files petition with USCIS to classify FN

in employment-based 2nd preference category

File concurrently if visa available

Step 3: I-485 FN & dependents file green card application

in U.S. Normally file concurrently with I-140 if visa

available Can apply for PR at US consulate overseas

UCSC PERM Timeline:

Special Handling Conduct normal competitive

recruitment

Submit Academic Recruitment Record, Parts A, B, C

Must file within 30 – 180 days after notice forwarded to UCSC Faculty Association

DOL & USCIS Adjudication Timelines &

Fees PERM DOL: 3-6 months, assuming no audit.

Add on three months if audited USCIS: I-140 alone: 9-12 months USCIS: I-485 green card application

alone: 6-12 months USCIS: I-140/I-485 together: 12-24

months

USCIS filing fees $0 for PERM $475 for I-140 for step 2 $1010 for the FN’s I-485 green card

application (includes work permit and travel doc)

Pathway 2: PR for Outstanding Professor

Step 1: I-140 UCSC prepares and files petition with USCIS

showing: Professor is internationally recognized as

outstanding in his/her academic field Has at least 3 years of prior research/teaching

experience Can submit at least two out of eight possible types

of evidence – see handout for list of evidence Requires at least six to eight letters of

endorsement from scholars/researchers in the field

Step 2: I-485 FN and dependents file green card application Normally filed concurrently with I-140 if visa is

available

Pathway 3: PR for Outstanding Researchers (without or with

exception) For FN at the Associate Researcher

level or higher – others must be by exception

Employment must be full-time

Funding must be guaranteed for a minimum of 3 years and recruitment has occurred within 6 months

Follows same 2-step process as Outstanding Professors

Pathways 4 & 5: Self-petitioning Researchers

Must demonstrate they are “aliens of exceptional ability in the arts, sciences, business, or education”;

OR Must demonstrate that their work is

in the “national interest” and that they contribute to this research in a significant way on a national level

Self-petitioners follow same 2-step process as UCSC-sponsored Professors and Researchers

Pathway 6: PR Based on Marriage to a US Citizen

Applications filed by foreign national (FN) and spouse

No UCSC involvement

Timeline: ~ 75 days for travel document; 90 days for work permit (EAD); 4 mos. to interview

USCIS filing fees: $1010 for FN; $355 for petitioning spouse

Outstanding Professors/Researchers

& Self-Petitioners: Timeline and Fees

I-140/I-485: 12-24 months

USCIS filing fees: $475 for petition; $1010 for I-485 (with work permit & travel document

H-1B vs. PRCompare &

Contrast

H-1B vs. PRH-1B PR

Temporary job offer – maximum 6 years; can be extended in certain circumstances

Offer of permanent employment

Visa status tied to employer – can only receive salary from UCSC

Once PR is approved FN no longer tied to UCSC

Can be part-time Must be full timeCan hold > 1 H-1B for > 1 employer

Must work for UCSC for “reasonable period of time” once approved

H-1B PRNo recruitment of US workers required

PERM requires recruitment of qualified candidates first

Job posting must be for 10 days by dept.

Job opening must be forwarded to Labor Relations for forwarding to UCSC Faculty Assoc.

Must be paid prevailing wage

Must be paid prevailing wage

H-1B vs. PR

H-1B PROnly requires a Bachelor’s degree

Requires Master’s or higher; FN must be more qualified than all US candidates (PERM) or be internationally recognized & have 3 yrs prior teaching/research experience

Requires H-1B visa in passport to enter US from abroad

No visa required; entry with green card and foreign passport

H-1B vs. PR

H-1B vs. PRH-1B PR

No direct pathway to citizenship

Can apply for US citizenship after 5 yrs & if certain residence requirements are met

Does not require medical exam or FBI background check

Requires medical exam & background check

Strategic Maintenance of H-1B

During PR Process UCSC applies for PR status during foreign

national’s H-1B status

FN should maintain H-1B status during the PR process as a back-up position in case the PR case is denied for whatever reason (including USCIS errors).

FN and UCSC should apply for H-1B extensions in plenty of time to avoid delays.

During PR process once FN applies for green card, FN also applies for employment authorization (EAD) and international travel document (Advance Parole).

EAD and Advance Parole

I-140/I-485: 12-24 months Employment Authorization

Document (EAD) Allows FN to work for UCSC and for

other employers during the PR process Normally given for one year at a time Fee is included in green card

application

Advance Parole (AP) Allows FN to come back into US from

overseas trip without visa Fee is also included in green card

application

Work/Travel on H-1B or EAD/AP

If FN enters on AP, he/she must work on EAD

If FN enters on H-1B visa he/she would continue working in H-1B status

ISSS preference: FN should try to stay in H-1B status and use the EAD and AP as a back-up in case the FN does not have time to obtain new H-1B visa overseas or if FN wants to accept payment from consulting assignments from employer other than UCSC

Maintenance of PR Status Re-entry from int’l trip of 6 months

or less: Valid unexpired green card and valid

unexpired passport Trip must be temporary and intent is

to remain lawful PR

Trips of 6 months to 1 year FN should consult with ISSS or

immigration counsel to find out what evidence to present upon re-entry

Trips of 1-2 to two years Must first obtain re-entry permit prior

to departure

Naturalization as US citizen Recommended for most PRs – no

UCSC involvement in application

FN usually can retain dual citizenship

Must wait 5 years after becoming PR (3 if based on marriage)

Must satisfy residence and physical presence requirements

Trips overseas longer then 180 days may create continuity of residence issues

Must demonstrate good moral character

Must pass English and Civics test

Timeline: Approximately one year from application to swearing in

USCIS Filing Fees: $595 plus $80 biometric fee

Naturalization as US citizen

Process Key Points to Remember

“How to” Overview

Workshop Materials Review

Presented By Anna L. Stuart

Key Points to Remember

Call ISSS

Responsibility for Costs = Department

Deadline

How to Initiate a PR

Contact ISSS

Eligibility

Initiating Outside Counsel:

ISSS Form OC01 Mandatory Initial Consultation Meeting

Purpose: to discuss & determine most appropriate PR Pathway with Outside Counsel

Minimum Attendees: Outside Counsel, ISSS, Employee/Scholar, Dept &/or Div Rep

ISSS Form OC01: Initiate Outside Counsel

ISSS as liaison for Outside Counsel

Continued Representation by Outside Counsel

ISSS Form OC02: Continuity of Outside Counsel FOAPAL provided to cover basic

attorney fees specific to PR Pathway Dept acknowledgement of

responsibility for all associated costs Dependents - responsibility of

Employee Cannot pass costs associated with

PERM filing back to Employee If a UCSC FOAPAL is used =

“UCSC-sponsored PR’

Workshop Materials Overview Pathway 1: PERM

Sample Department Checklist (Dossier) EDD Prevailing Wage Request DOL ETA 9089

Pathways 1-5: USCIS I-140 Form

Charts Comparison of PR Pathways H-1B vs PR PR Process Flow Visa Costs Comparison

Test What’s the most important thing to remember after today?

If in doubt, contact ISSS: Anne Butler @ 9-4214 Anna L. Stuart @ 9-5269 ISSS Mainline @ 9-3550

Stretch Break!

Case Studies

Q & A

Thank you for coming!