Operating Procedure - University of Texas Rio Grande Valley

The University of Texas Rio Grande Valley Operating Procedure

January 2, 2017

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Operating Procedure Alberto Castillo

Immigration Services Manager

Page:

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HIRING OF TEMPORARY NON-IMMIGRANT WORKERS

CONTENTS

I. Statement;

II. Purpose;

III. Visas Sponsored by UTRGV and Individuals Eligible;

IV. Compliance with the Immigration and Nationality Act (INA);

V. Positions That Will be considered for Sponsorship;

VI. Responsibilities and Process for Obtaining Approval for UTRGV H-1B Sponsorship; VII. Maintenance of Ongoing Compliance with State and Federal Laws Related to H1B Employees;

VIII. Rest of Visa Options and Employment Authorizations;

IX. Related Statues, Polices, Requirements or Standards;

X. Other Related Resources and Guidelines;

XI. Forms;

XII. Contact Information;

XIII. Disclaimer; and

XIV. Operating Procedure Review.

I. Statement

Foreign Nationals make many valuable contributions to the teaching and research mission of

The University of Texas Rio Grande Valley (UTRGV). Therefore, it is important that hiring

departments are aware of the University policy and operating procedure for the filing and

sponsorship of temporary nonimmigrant worker visas, known as the H1-B. A general

overview of the operating procedure for filing and sponsoring a foreign national for

employment petitions at UTRGV is provided below. In addition to the university operations

and processes regarding such sponsorship, included is general information about other

employment authorization and visa options at UTRGV.

II. Purpose

The purpose of this operating procedure is to:

A. Identify those positions for which The University of Texas Rio Grande Valley will

consider for Visa sponsorship.


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B. Establish the operating procedure for requesting, obtaining approval for, and processing

an immigration petition, as well as provide forms for departments and foreign nationals to

utilize in relation to the process.

C. Establish immigration operating procedure in compliance with state and federal laws as

well as related institutional policies.

III. Visas Sponsored by UTRGV and Individuals Eligible

a. H1B

b. O1

c. TN

d. E3

e. J1

f. B1

g. VWP

h. EAD Cards

This procedure applies to all staff and faculty that require sponsorship for a temporary non-

immigrant worker status with UTRGV and the sponsoring departments who hire them.

IV. Compliance with the Immigration and Nationality Act (INA)

To comply with the provisions of the Title 8 of Code of Federal Regulations (8 CFR) and

Immigration and Nationality Act (INA), The University of Texas Rio Grande Valley (UTRGV)

will only employ individuals who are federally authorized to work in the United States. All

petitions for temporary employment must directly support the teaching and research mission of

UTRGV and comply with the rules and regulations of the Department of Labor (DOL),

Department of Homeland Security (DHS), and Department of State (DOS).

V. Positions That will be Considered for H-1B Sponsorship

The majority of positions which the University will fill with foreign nationals fall into the H-1B

"specialty occupation" category, which is the focus of this procedure.

A. Specialty Occupations

An H-1B visa is available for a "person in a specialty occupation" who is coming

temporarily to the U.S. "A specialty occupation" for H-1B purposes is an occupation that

requires:


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1. Theoretical and practical application of a body of highly specialized knowledge,

2. Attainment of a bachelor's or higher degree in the specific specialty (or its equivalent)

as a minimum for entry into the occupation in the United States.

B. The University will not sponsor individuals for an H-1B visa if the position does not require

a minimum of a bachelor's degree (equivalent experience is not acceptable for the purposes

of University sponsorship) and satisfy the above requirements for a "specialty occupation."

A foreign national's qualifications are irrelevant when evaluating whether a position

qualifies as a "specialty occupation."

C. Please note that the general rule is that the individual CANNOT begin to work until the H-

1B petition is approved, as evidenced by a hard-copy of the H-1B approval notice. An e-

mail notification of approval is not sufficient evidence to permit the foreign national to

begin work. Filing of the petition does not authorize a foreign national to begin

employment. There are certain exceptions to this rule available for those extending H-1B

status or those changing employers, which are addressed below. Otherwise, departments

MUST NOT permit a foreign national to begin employment until the H-1B petition has

been approved and received by the Human Resources Immigration Services Manager.

*Note - Employment Eligibility Verification (Form I-9): Newly hired employees must fill out

section 1 of Form I-9 on the first day of work. Human Resources completes section 2 of Form I-

9 within three (3) business days of the employee’s first day of employment, and completes E-

Verify as required. The employee must present original documents from the List of Acceptable

Documents as they appear on the current I-9 form. Documents must be updated prior to

expiration in order for the employee to continue working at UTRGV.

*Note - The University of Texas Rio Grande Valley (UTRGV) is an E-Verify employer. E-Verify

is an Internet-based system that compares information from an employee's Form I-9,

Employment Eligibility Verification, to data from U.S. Department of Homeland Security and

Social Security Administration records to confirm employment eligibility. All new UTRGV

employees will have to go through the E-Verify system.

D. Part-time H-1Bs

Part-time H-1Bs are discouraged and not permitted under UTRGV operating procedure. The

Department of Labor requires a strict record-keeping of all part time hours worked, and this

makes these H-1Bs much harder to keep up with in terms of compliance. Please consult

with the Human Resources Immigration Services Manager to discuss exceptions to this

operating procedure. Cases that merit further discussion will be referred to the Director of

Human Resources, the Chief Human Resources Officer, and the Provost's Office.

E. Changes of Status to H-1B

For individuals already in the U.S. in another immigration status (i.e. F-1/OPT, J-1, O-1,

TN, H4, etc…), the individual must still petition for H-1B status. In order to change status


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within the U.S., a nonimmigrant must be maintaining their current status. The University

will not sponsor an individual for H-1B status who has not properly maintained legal status

in the U.S.

F. Important Note Regarding J-1/J-2 Immigration Status

If the nonimmigrant is in J status and is subject to the 212(e) 2-year home residence

requirement (or ever was in the past), he/she cannot change to H-1B status until this

requirement is either fulfilled or waived. If waived by the Department of State, an official

waiver letter must accompany the petition when the case is sent to USCIS. Please contact

the Human Resources Immigration Services Manager for more information.

G. Non-Transferability of H-1B Status

H-1B work authorization is employer specific. The H-1B status which has been obtained on

behalf of an employee may not be used by any other employer. An additional H-1B would

need to be approved for a second employer. While a person may hold more than one H-1B

classification, he/she is only permitted to work for the approved employer(s). There is a

portability provision which allows a current H-1B worker, who is changing employment to

the University of Texas Rio Grande Valley and thus filing a new H-1B petition, to begin

working here as soon as confirmation is received that USCIS has received the petition,

rather than waiting for the new petition to be approved.

H. Extensions of H-1B Status

H-1B extension operating procedure is basically the same as the initial H-1B. Therefore, the

initiation form and entire procedure must again be completed by the department and the

employee, and submitted to the Human Resources Immigration Services Manager with all

supporting documentation. It is important to request the extension as soon as possible (if

possible 6 months before expiration of status). H-1B extensions fall under a special "240-

day rule": "An H-1B alien for whom the employer has filed a timely application for an

extension of H1B stay can continue employment for the same employer while the request for

extension of stay is pending with USCIS, for a period of up to 240 days beyond the

expiration of the prior period of authorized stay." This rule only applies when the H-1B

extension petition has been filed before the current H-1B visa status expires- if the petition

is not timely filed, the individual cannot continue to work beyond the expiration of his/her

current visa status.

I. Length of H-1B Visa

1. H-1B status may be requested for an initial period of stay up to 3 years. The length of

the H-1B visa is a decision made by the employing department. The University

encourages departments to request 3 years if funding is available, to avoid having to

undergo the extension process, which incurs additional fees. However, the Human

Resources Immigration Services Manager will only request the H-1B visa for the

duration of the position as indicated by the Employing Department. Department have

to indicate exactly the first day of work of the employees.


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2. Beyond the initial 3 year period, extensions of H-1B visas are available for up to

another 3 year increment; the cumulative duration of an H-1B classification is 6 years.

Unless the individual is subject to other circumstances (such as pending green card

petition/adjustment of status to a permanent resident), the H-1B visa cannot be

extended beyond 6 years. If the 6 years have been used, the individual must remain

outside the U.S. for a period of one year before the H-1B six-year clock can begin

again.

J. Fees

1. The employing department is responsible for all fees associated with the H-1B petition.

The maximum potential fees which may be incurred for an H-1B petition are $2,185.

$460 filing fee for the H-1B petition itself, the I-129 petition for a Nonimmigrant

Worker.

$500 USCIS government fraud prevention and detection fee required for each

new H-1B petition (not required for a petition extending H-1B status with the

same employer).

Miscellaneous mailing fees- FedEx, UPS, certified mail, etc.

I-907 Request for Premium Processing Service - $1,225 potential premium

processing fee- depending on the timing of the petition, it may be necessary to

fast-track the petition with the premium processing option. It is strongly urged

that the department pursue premium processing of an H-1B petition if it has been

filed regular processing, and the new foreign employee has not received his/her

approval notice at three weeks prior to the requested employment start date.

*Note - Premium Processing Fee: The fee may be paid by the employee only if it is the personal

request of the employee and unrelated to employment needs. Additionally it must be

demonstrated that paying the fee will not put the employee annual income below the DOL

prevailing wage.

2. Miscellaneous

Any costs associated with the filing of H-4 dependent petitions (I-539 - $370)

should be paid by the beneficiary or the department; the University has no

obligation for these fees.

I-102 ($445) is the application for replacement/initial nonimmigrant arrival

departure document and needs to be paid by the employee who lost the document.

Miscellaneous overseas consular processing fees- if the foreign national is abroad,

he or she will need to pay an additional filing fees to the U.S. Consulate. DS -160

applications and DOS visa reciprocity fees (non-petition $160, with petition $190,

and reciprocity fees depending on the nationality of the visa applicant)


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K. Paying Return Transportation of Alien

If the employee is dismissed before the end of the authorized period of H-1B employment,

the sponsoring department will be responsible for paying the reasonable costs of return

transportation to the employee's last permanent residency outside the Unites States. This is

required by USCIS regulations, to ensure that the foreign national will not be stranded in the

U.S. without being able to return to his/her last place of residency or home country.

VI. Responsibilities and Process for Obtaining Approval for The University

of Texas Rio Grande Valley H-1B Sponsorship

A. Initiation by the Employing Department and Review of the Request

1. The employing department seeking to sponsor the foreign national must submit, UTRGV

H-1B Request Packet signed by the Chairman and the Dean. The foreign national

employee may not initiate the request. The UTRGV H-1B Request Packet is then

submitted to The Office of Human Resources, for the Immigration Services Manager

review. The Immigration Services Manager will notify the department if the request for

sponsorship will be denied and will explain the denial. If the department disagrees with

the denial, it may appeal the decision to the Director of Human Resources, the Chief

Human Resources Officer and/or the Provost. If the request is approved, the Immigration

Services Manager will begin the H-1B petition process.

2. The Immigration Services Manager will also require the H-1B beneficiary (foreign

national employee) to complete, The Foreign National Application Checklist.

B. Preparation of the Petition by the Immigration Services Manager at the Office of

Human Resources

1. The Immigration Services Manager will request that the employing department and the

foreign national provide certain documents necessary for the H-1B petition and legal

compliance. Departments should print all documents on The University of Texas Rio

Grande Valley departmental letterhead. As the information reflected in all documents

must be consistent, it is possible that departments will be requested to revise/update these

forms.

2. Once the necessary information is received, the Immigration Services Manager will need

to file a prevailing wage application with the Department of Labor (DOL) to demonstrate

that the H-1B employee is being paid the “actual wage” or “prevailing wage” whichever

is higher. This procedure alone can take over 90 days to complete. The actual wage is the

amount being paid to faculty or staff employed by UTRGV with similar experience and

qualifications for that specific position in the particular department, laboratory, or center.

The prevailing wage is the salary rate being paid in academic institutions in a particular

metropolitan statistical area for the same occupation. If the employee’s salary is below


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the DOL prevailing wage (or actual wage whichever is higher) the employee cannot

continue with the H-1B application and the Immigration Services Manger will need to

notify the department of this and will discuss other options. Finally it is important to note

that prevailing wages can change significantly year-to-year, and new DOL data are

released annually on July 1st.

*Best Practice Note: By obtaining the prevailing wage from the NPWC, H-1B, and E-3 we

are given “safe-harbor status,” meaning that if UTRGV wage compliance is investigated

for any reason, the Wage and Hour Division of the Department of Labor will not

challenge the validity of the prevailing wage as long as it was applied properly (i.e., correct

geographic area, occupation, and skill level.

Although the Department of Labor regulations governing the LCA process do not require an

employer to use any specific wage methodology to determine the prevailing wage, they do

require that the prevailing wage be based on the best information available at the time the

employer files an application. Filing and LCA may, but is not required to, request a

prevailing wage determination (PWD) from the OFLC’s National Prevailing Wage Center

(NPWC) by U.S. mail or through the iCERT Portal System. In the absence of a PWD issued

by the NPWC, we may consider the following wage sources in determining the prevailing

wage:

1. A wage rate set forth in a collective bargaining agreement (CBA), or

2. If the job opportunity is in an occupation which is not covered by a CBA: A wage rate

for the occupation and area of intended employment under the Davis-Bacon Act (DBA);

3. A wage rate for the occupation and area of intended employment issued under the

McNamara-O'Hara Service Contract Act (SCA);

4. A wage rate produced by a survey conducted by an independent authoritative source that

meets the requirements set forth in 20 CFR 655.731; or

5. A wage rate produced by another legitimate source of information, including the Bureau

of Labor Statistics Occupational Employment Statistics Survey (OES) data available

through the iCERT Portal System and the FLC Data Center.

C. Postings by Employing Department and Department of Human Resources

Once the DOL Prevailing Wage has been determined the Immigration Services Manager

will create a posting notifying employees that the University is filing the LCA on Form

ETA-9035, which will be provided to the Department of Human Resources and the

employing department. Both departments will post this notice in an area of sufficient

visibility for other employees. The employing department must ensure that this notice is

posted in the actual work area in which the foreign national will be performing his/her

job duties. It is the responsibility of the employing department to inform the Immigration

Services Manager of all physical work sites of the foreign national. These notices must be

posted for 10 consecutive calendar days, after which it must be signed and dated by a

department administrator, and the original must be returned to the Immigration Services

Manager, who will keep track of the 10 consecutive calendar days.


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D. Approval of the Labor Conditions Application (LCA) by the Department of Labor

Following the posting of the notice, the Immigration Services Manager will file the LCA

on Form ETA-9035 and upon certification (approximately in 7 business days) will sign

the LCA and provide one copy to the H-1B worker. The Immigration Services Manager

will then confirm that all of the required documents have been collected for the H-1B

petition and will prepare the petition to be filed with the U.S. Citizenship and

Immigration Services.

E. Payment of Fees by the Employing Department and Beneficiary

The employing department will request that checks for all of the required filing costs be

provided to the Immigration Services Manager at the office of Human Resources. All

filing fee checks are to be separate checks made payable to U.S. Department of

Homeland Security. The Immigration Services Manager will also provide departments

with additional fees (arraigning any certified mail/courier services) and instructions. The

employing department will also assist in ensuring that any fees that will be paid by the

foreign national beneficiary (H4 - Dependents) are provided to the Immigration Services

Manager to be sent with the nonimmigrant worker petition.

F. Submission of the H-1B Petition to USCIS by the Immigration Services Manager at

Human Resources

1. The Immigration Services Manager at Human Resources will review the entire

sponsoring petition, along with the USCIS Forms I-129 and sign these forms. After the

petition has been signed, the Immigration Services Manager will submit the H-1B

petition, approved LCA and other evidentiary documents to the designated USCIS

Immigration Service Center for adjudication. There is no way to accurately approximate

the time it will take for H-1B approval. In addition, if the H-1B beneficiary is not in the

United States, this significantly increases processing times. Generally, it takes six to eight

months for the petition to be approved if it is a change of status to H-1B. If the individual

has an H-1B through another employer and he is "porting" the H-1B to UTRGV, it could

take up to 8 months for approval. In the latter case, as well as an H-1B extension,

however, the individual is eligible to work at UTRGV while the case of portability is

pending at the Immigration Service Center.

2. If the foreign national beneficiary has dependents for which he/she will be applying for

H-4 status, it is recommended that this application be submitted along with the I-129

petition. The University it’s not responsible for paying the filing fee, it will mail all of the

petition materials in together. Please notify the Immigration Services Manager at the

beginning of the H-1B process if the H-1B beneficiary has dependents.

*Note - If the beneficiary is not in the U.S. (Immigration Services Manager needs to send a

duplicate petition to USCIS) a notification of an approved petition is sent directly from USCIS to

the U.S. Embassy or U.S. Consulate where the beneficiary will be requesting the H-1B visa

stamp. An original H-1B approval notice (USCIS Form I-797) will be sent to the Office of

Human Resources. The Immigration Services Manager at Human Resources will mail the


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original H-1B approval notice along with a copy of the approved H-1B petition plus evidentiary

materials to the beneficiary to use when they apply for the H-1B visa stamp.

VII. Maintenance of Ongoing Compliance with State and Federal Laws

Related to H1B Employees

A. Change in H-1B Beneficiary Job Duties, Work Location, or Resignation/Termination

of Employee

The Employing Department is responsible for notifying the Immigration Services Manager

if the H-1B beneficiary's job duties responsibilities change, job title rank change, decrease

in salary/benefits, substantial increase in salary/benefits, promotions, if the location of

employment has changed, or if the H-1B beneficiary resigns/is terminated from his/her

position. The foreign national employee will not be placed on unpaid leave or any type of

non-pay status at any time without the Immigration Services Manager approval. A change

in job duties, job location, resignation, or termination of the H-1B beneficiary creates

certain legal obligations on the part of the University to amend/revise/revoke/withdrawal

USCIS and DOL documentation which was filed pertaining to the H-1B beneficiary's status.

Please note that if the University does not notify the USCIS and/or DOL of changes in an

H-1B employee's status, the University may incur certain monetary liabilities and will

jeopardize UTRGV’s ability to sponsor foreign nationals in the future.

B. Deemed Export Control

All employers seeking H-1B status for employees must answer questions regarding export

control compliance before a new H-1B, O1 or extension application can be filed with the

United States Citizenship and Immigration Service (USCIS). Federal law also requires that

any material change to the employment during the H-1B sponsorship period must be

reported to the Immigration Services Manager at the Human Resources Office immediately

including; salary, appointment title, work location, and Export Control issues. The H-1B

and O-1 instructions list the questions to be answered and outline the Export Control

process. In some cases a second review of the Export Control issue will need to be

conducted by The University of Texas Rio Grande Valley Associate VP for Research in the

office of RESEARCH in charge of International Agreements and Export Control Licensing

before the Immigration Services Manager may proceed with the immigration application.

The Department of Homeland Security USCIS states the following regarding this new

regulation: The Export Administration Regulations (EAR) (15 CFR Parts 770-774) and the

International Traffic in Arms Regulations (IT AR) (22 CFR Parts 120-130) require U.S.

persons to seek and receive authorization from the U.S. Government before releasing to

foreign persons in the United States controlled technology or technical data. Under both the

EAR and the ITAR, release of controlled technology or technical data to foreign persons in

the United States--even by an employer--is deemed to be an export to that person's country

or countries of nationality. A U.S. company must [document that a license is not required,


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or] seek and receive a license from the U.S. Government before it releases controlled

technology or technical data to its nonimmigrant workers employed as H-1B, L-I or O-IA

beneficiaries.

Export control regulations are federal laws that prohibit the unlicensed export or potential

export of certain controlled commodities or information for reasons of national security or

protections of trade. Note: Work that will be published or otherwise released to the public is

often exempt under the terms of fundamental research. Export controls usually arise for one

or more of the following reasons:

The nature of the export has actual or potential military applications or economic

protection issues;

Government concerns about the destination country, organization, or individual,

and

Government concerns about the declared or suspected end use or the end user of

the export

In the course of their work researchers at UTRGV may be asked to accept confidential,

proprietary information, materials, software code or technology from a sponsor or third

party. In some cases, non-disclosure requests are embedded in the content of several kinds

of agreements between UTRGV and the sponsor or third-party. Examples of such

institutional agreements include equipment or software purchases or loans, technology

licensing, data sharing agreements, and material transfer agreements. The acceptance of

disclosure-restricted information, equipment, software code or technology may expose the

recipient to "deemed export" compliance risk since such information is not covered by the

fundamental research exclusion.

C. Public Access File and Department of Labor File

1. Per Department of Labor (DOL) regulations, an employer must make certain documents

(copy of the certified LCA; copy of the LCA cover pages; documentation which provides

the wage rate to be paid to the H-1B worker; actual wage system memorandum;

prevailing wage documentation; summary of the benefits offered to U.S. workers in the

same occupational classification as the H-1B worker(s), and if there are differences, a

statement as to how differentiation in benefits is made; Notice of Filing of the LCA,

evidencing that the LCA was physically posted in two conspicuous locations at the

worksite(s) where the H-1B employee will work; and acknowledgment of receipt of the

LCA by the H-1B employee) filed as part of the H-1B petition available for public

examination at the employer's principal place of business in the U.S. or the place of

employment. Public access means that individuals have the right to view these

documents, including the Labor Conditions Applications (LCA). The Immigration

Services Manager will maintain the Public Access File for one year beyond the LCA

period, and any related payroll records for 3 years from the date of creation except if an

enforcement action is commenced, all payroll records shall be retained until enforcement

proceeding is completed. Employing departments should direct any individuals interested


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in reviewing these documents to the office of the immigration services manager at

Human Resources.

2. In addition to the Public Access File, the employer is required to maintain and must make

available for the inspection by the DOL other documentation related to the H-1B petition.

These documents are maintained as part of the foreign national employee's immigration

file, which is kept at the Office of Human Resources. Employing Departments should

direct any representatives of the DOL interested in reviewing these documents to the

Immigration Services Manager at Human Resources.

D. The University of Texas Rio Grande Valley (UTRGV) DHS, DOS and other

government agencies audits or on site Compliance Reviews Visits

UTRGV including the Office of Human Resources, or individual host departments may be

subject to audits or on-site compliance reviews pertaining to the sponsorship of

nonimmigrant employees. These audits and on-site inspections may be made by agents or

designates from U.S. Department of Homeland Security (Immigration Customs

Enforcement), U.S. Department of State, or other agencies, as applicable. Any questions

related to audits or compliance visits should be refereed immediately to the Immigration

Services Manager at Human Resources.

E. Change of Address

All non-immigrants are required to notify the U.S. Citizenship and Immigration Services

within 10 days of a change of residential address. Notification of change of address is

accomplished by completing USCIS Form AR-11. Please follow the instructions. Please

also notify the Immigration Services Manager at the Human Resources Office of new

addresses by sending a photocopy of the form submitted to the USCIS.

F. Travel Information

Any sponsored foreign national needs to contact the Immigration Services Manager before

they travel, the Immigration Services Manager will give them information on traveling

outside the United States, traveling to Canada, Mexico & Adjacent Islands, traveling in the

United States, traveling to get a U.S. visa stamp and the delays in the U.S. consulates

(receive a U.S. consular pending administrative processing 221 (G) or worst a 214 (B) U.S.

consular refusal), and on how to Obtain an I-94 at the U.S. port of entry upon their travel

return. It is very important to contact your Immigration Services Manager because in some

cases it will be very difficult to come back to the U.S. if you don’t have the proper

documentation, or it will be recommended no to travel base on the current immigration

status of the foreign national.

G. The University of Texas Rio Grande Valley (UTRGV) Liability

Submission of an H-1B petition by UTRGV on behalf of a prospective employee does not

guarantee that the petition will be approved. The approval of such petitions rests with U.S.

government agencies (Department of Labor, Department of Homeland Security and

Department of State)--not with UTRGV. Be assured, however, that every effort will be


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made by the Office of Human Resources to process the paperwork in as timely a manner as

possible.

VIII. Rest of Visa Options and Employment Authorizations at UTRGV

The list below is only a brief summary of other non-immigrant classifications that are

commonly used on institutions of higher education and can also be used at for hiring. This is

for informational purposes only.

1) O-1 Exceptional Ability: Temporary hire for academic staff appointment;

The O-1 temporary worker visa status is designated for individuals of extraordinary

ability in the sciences, education, business, arts or athletics and individuals of

extraordinary achievement in the motion picture and television industries. The United

States Citizenship & Immigration Services (USCIS) determines whether an individual

qualifies for O-1 visa status. O-1 visas are initially valid for up to 3 years and may be

extended in one-year increments. To qualify as an individual of extraordinary ability a

foreign national must show evidence of receipt of a major internationally recognized

award, such as the Nobel Prize or at least three of the following:

Receipt of lesser nationally or internationally recognized prizes or awards for

excellence in the field;

Membership in associations in the field which require outstanding achievements

of their members, as judged by recognized experts in the field;

Evidence of authorship of scholarly articles in the field, in professional journals,

or other major media;

Published material in professional or major trade publications or major media

about the applicant's work;

Evidence of participation on a panel, or individually, as the judge of the work of

others in the field;

Evidence in the form of 5 or 6 letters from prominent colleagues who can confirm

the applicant's original scientific or scholarly contributions of major significance

to the field;

Evidence of employment in a critical or essential capacity for organizations and

establishments that have a distinguished reputation; and

Evidence of commanding a high salary or other compensation for services. This

category does not usually apply to academic positions.

Specifics of Approval

The United States Citizenship & Immigration Services (USCIS) decides whether an

individual qualifies for O-1 classification. The O-1 visa is employer specific, which


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means that a USCIS approved petition submitted by the Immigration Services Manager

only authorizes the individual to work in the position specified in the petition filed by

UTRGV. An individual who has an O-1 approval from another employer is not eligible to

work at UTRGV. The employer will be liable for the reasonable cost of return

transportation of the applicant abroad if the applicant is dismissed from employment by

the employer before the end of the period of authorized admission.

2) E-3 Australian Citizens: Australian Citizens in a “Specialty Occupation”;

The E-3 visa, enacted in May 2005, allows for the admission of an alien who is a national

of the Commonwealth of Australia and is entering the U.S. to perform services in a

“specialty occupation.” A specialty occupation for an E-3 alien is defined in the Act in

the same manner as the H-1B context, that is, a specialty occupation means an occupation

that requires the theoretical and practical application of a body of highly specialized

knowledge, and attainment of a bachelor’s or higher degree in the specific specialty (or

its equivalent) as a minimum for entry into the occupation. E-3 workers may be admitted

initially for a period up to two years, and extensions of stay may be granted indefinitely

in increments of up to two years. There is no limit on the total length of stay for an E-3.

Under current regulations, E-3 nonimmigrants shall maintain an intention to depart the

U.S. upon the expiration of termination of E-3 status. An application for initial

admission, change of status or extension of stay in E-3 classification, however, may not

be denied solely on the basis of an approved request for permanent labor certification or a

filed or approved immigrant petition. The Immigration Services Manager must file and

receive an approved Labor Condition Application from the U.S. Department of Labor,

exactly as is required of an H-1B, before an employee may obtain an E-3 visa or E-3

status. However, no petition for employees entering from outside the U.S. must be filed

by the employer with USCIS in advance of the employee’s arrival. Only if a change of

status or extension of stay is necessary to file a petition (Form I-129) to USCIS.

Dependent spouse and children under 21 of an E-3 principal may also derive E-3 status

regardless of the spouse or children’s nationality. Spouses may apply for work

authorization to USCIS only upon arrival in the U.S. Maximum processing time is 90

days.

For whom is E-3 the Best Option?

The E-3 is an attractive alternative to H-1B status for an Australian national who is

coming to the U.S. with a spouse who hopes to work in the U.S. It is also an option for an

individual who may not be eligible for H-1B status or who has exhausted the 6 year limit

on H-1B status. The other advantage is that the petition does not require approval by

USCIS which saves time and money. For a person contemplating an application for U.S.

permanent resident status, the H-1B may be a more suitable option.

What documentation is required for a principal to obtain an E-3 visa abroad or E-3 status

in the U.S.?


January 2, 2017

14

Citizens of Australia apply directly to the U.S consulate for an E-3 visa by presenting the

following documents:

1. Certified Labor Condition Application, filed with the Department of Labor. (For

UTRGV employees, this document would be provided by the Immigration Services

Manager at Human Resources.)

2. Job offer letter describing the specialty occupation, the salary offered, the minimum

requirements for the position and how the individual meets these requirements.

3. Evidence of a U.S. bachelor’s degree in the field or its equivalent and U.S. professional

license if applicable.

4. Evidence establishing that the applicant’s stay in the United States will be temporary.

How can an application for an extension be made?

Scholars in E-3 status have two options for extending their stay:

1. They may return to Australia and re-apply at the U.S. embassy or consulate with the

same documentation that is required for an original application, or

2. They may have UTRGV file form I-129 with USCIS. This option does not require the

employee leave the U.S., but requires a USCIS fee of $320 and can take approximately 3

months.

3) TN Trade NAFTA Status: Citizens of Canada & Mexico can work temporarily in

the U.S.;

The non-immigrant NAFTA Free Trade Agreement (TN) visa allows citizens of Canada

and Mexico to work temporarily in the United States in certain occupations (Please

consult with the Immigration Services Manager regarding the occupations). The most

typical use of the TN visa at UTRGV is for paid employees doing teaching or research.

The general process (there are different details for Canadians and Mexicans below) is to

have a specific TN support letter from the department and the Human Resources office to

enter the U.S. requesting TN status. The TN visa stamp for Mexican is granted only for 1

year and the TN status is granted for up to a three year period based on the actual dates of

employment at the U.S. Port of Entries. The TN visitor is given an I-94 record indicating

that they have been admitted to the US, naming UTRGV as the employer, and listing the

date by which they must depart. The TN employee needs to then register with the

Immigration Services Manager at Human Resources upon arrival in the U.S. Please note;

there is no grace period of additional time to remain in the U.S. beyond the date in the I-

94 record. Canadian nationals do not need to obtain a visa stamp, just their I-94 record.

Please be aware that the TN letter can only be signed by the Immigration Services

Manager at Human Resources or the Human Resources Director. If a department fails to

comply with this then Human Resources has the authority to finish the employment for

this TN visa holder.


January 2, 2017

15

4) J-1 Exchange Visitor: Professor, Research Scholar, and Short Term Scholar;

The J visa’s formal name is the Exchange Visitor Program and is governed by the U.S.

Department of State. The Program was created to “…promote mutual understanding

between the people of the United States and other countries by means of educational and

cultural exchange…” At UTRGV scholars use the J visa for official appointments such as

research scholar, short term scholar, visiting faculty, postdoctoral or postgraduate fellows

and associates, as well as other temporary academic appointments. The spouse and

dependent children of a J-1 student hold J-2 status and can usually obtain permission

from DHS to work in the U.S. For more information on J-1 visas you need to contact the

office of international programs.

5) B-1 The “Visitor” Visa: For short-term visitors and guest lectures;

The B1/B2 visitor visa is most often used for individuals who come to campus to give a

lecture or participating in a seminar or colloquium. And while most short-term academic

appointments use the UTRGV sponsored J-1 Exchange Visitor visa, which is relatively

quick and easy to obtain, on rare occasions it may be possible for an individual to use the

Visitor Visa (either the B-1 Visa obtained from a U.S. consulate or the Visa Waiver for

Business.) These visitor visas are not “UTRGV sponsored” and their success and ease of

use are less predictable. If the activity meets the basic regulatory criteria (listed below), a

visitor to UTRGV may choose to use the B-1 visa or Visa Waiver for Business.

The position is temporary in nature, very short-term, and the visitor has a profession

or studies outside the U.S. they will return to;

They will not be paid a salary from a U.S. source;

They will not be in a job that would normally be filled by a U.S. worker

The activity at UTRGV will primarily benefit the visitor, not UTRGV;

Is able to pass all UTRGV institutional requirements to have access to the activity

/work site; and

There must be evidence that the visitor has finances to fund the visit including

transportation and health insurance.

Honorarium:

There are very specific and limited options about paying honorarium covered in the

UTRGV Procedure for honorariums. You must be familiar with the rules before

committing to paying the visitor an honorarium.

Reimbursement:

Visitors holding B-1 or B-2 visas or Visa Waiver, may accept reimbursement of

incidental expenses under the following conditions:


January 2, 2017

16

For "usual academic activity or activities" involving visits of 9 days or less at

UTRGV, and

The individual has accepted such payment from no more than 5 institutions, in the

previous 6 month period.

6) VWP - The Visa Waiver Program: Nationals of certain countries can travel for

tourism or business; and

The Visa Waiver Program (VWP) enables nationals of certain countries to travel to the

United States for tourism or business [visitor (B) visa purposes] for stays of 90 days or

less (extension or change of status are not permitted) without obtaining a visa. VWP

eligible travelers may apply for a visa, if they prefer to do so. Not all countries participate

in the VWP, and not all travelers from VWP countries are eligible to use the program.

VWP travelers are screened prior to admission into the United States using the Electronic

System for Travel Authorization (ESTA). You must complete your ESTA application

before departing for the U.S.

7) Employees with EAD -Rules & Regulations

Foreign Nationals in certain immigration statuses may have an Employment

Authorization Document (EAD) issued by USCIS. A Foreign National who is permitted

to apply for EAD should do so at least 120 days before employment begins. The USCIS

Form I-765 the actual plastic EAD itself must be in the possession of the employee

before employment can begin. Note this very important distinction: it is not enough to

have EAD approval either from the USCIS website or in paper form. A person in

possession of a valid and unexpired EAD may work in the U.S. only during the validity

dates written on the EAD itself.

A person with EAD can work for any number of US employers. However, UTRGV F-1

students with EAD based on OPT (Optional Practical Training) must work within the

area of their academic degree. F-1/OPT students can work for UTRGV as long as all jobs

are within the area of their academic degree for which OPT was granted and for at least

20 hours per week. F-1 students working under the STEM-OPT extension, have the

additional restriction of only being able to work for institutions who are enrolled in the E-

Verify program. F-1 students with STEM-OPT can work for multiple employers but all

employers must be enrolled in E-Verify. UTRGV is an E-Verify employer. UTRGV

employees must have EAD in hand before employment begins. UTRGV foreign national

employees should not be at the place of employment or begin working before the

approved EAD start date. Again, note that the foreign national employees cannot begin

working (at UTRGV or any other place of employment) until the EAD start date and

must stop working on the EAD end date.


January 2, 2017

17

EAD Renewals:

In some situations, the EAD can be renewed; in other situations it cannot. The foreign

national employee will know whether his or her EAD is renewable. If the EAD can be

renewed, the foreign national employee must ensure that the renewal application is filed

with USCIS at least 100 days before the current EAD expires. This is the only way to

ensure that the new EAD is approved and in hand before the current EAD expires. In

general, a pending EAD application does not provide permission to work, so persons with

a pending EAD application cannot work in the USA.

If the new EAD is not in hand at the time the previous EAD expires, the employee will be

placed on leave without pay (if applicable) until the new EAD is received. If it takes

longer than six weeks to receive the new EAD, the employee will be terminated but can

be rehired once the new EAD is received. To avoid these difficulties, the employee

should ensure that USCIS has the EAD renewal application at least 100 days before the

current EAD expires.

Permissible Activities for Employee without EAD:

As it pertains to UTRGV employees with EAD, please note that UTRGV must comply

with federal immigration regulations and employment cannot begin before the EAD start

date unless the employee has another type of valid and unexpired work authorization

document. UTRGV departments are also cautioned against having an international

employee on work premises engaging in work related activities before the EAD or

employment authorization start date. A foreign national employee can attend Orientation

before the employment start date but the employee should not engage in any other work

related activity outside of the Orientation activities. A foreign national employee who

engages in work related activities or employment before EAD begins is in violation of

immigration status. The University cannot violate federal regulations and foreign national

employees should not violate their immigration status by engaging in unlawful

employment. Departments and employees should contact the Immigration Services

Manager at Human Resources to discuss employment issues if there is a concern as to

when a foreign national employee with an EAD can begin to work.

*Note: EAD - Employment Authorization Documents:

EAD (a) (1) Employment authorized incident to status

EAD (a) (2) Lawful Temporary Resident

EAD (a) (3) Refugee

EAD (a) (4) Paroled Refugee

EAD (a) (5) Asylee

EAD (a) (6) Fiancé (e) (K-1 or K-2 Nonimmigrant)

EAD (a) (7) N-8 or N-9


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EAD (a) (8) Citizen of Micronesia, Marshall Islands, or Palau

EAD (a) (9) K-3 or K-4

EAD (a) (10) Withholding of Removal

EAD (a) (11) Deferred Enforced Departure (Extended Voluntary Departure)

EAD (a) (12) Temporary Protected Status

EAD (a) (13) Family Unity Program

EAD (a) (14) LIFE Legalization

EAD (a) (15) V Visa Nonimmigrants

EAD (a) (16) T-1 Visa Nonimmigrant

EAD (a) (17) E Visa Nonimmigrant Spouses

EAD (a) (18) L Visa Nonimmigrant Spouses

EAD (a) (19) U-1 Nonimmigrants

EAD (a) (20) U-2, U-3, U-4, or U-5 Nonimmigrants

EAD (c) (1) Spouse/Dependent of A-1 or A-2 Visa Nonimmigrant

EAD (c) (2) (TECRO)

EAD (c) (3) (A) F-1 Student, Pre-Completion Optional Practical Training

EAD (c) (3) (B) F-1 Student, Post-Completion Optional Practical Training

EAD (c) (3) (C) F-1 Student, 17-month extension for STEM Students

EAD (c) (3) (ii) F-1 Student, Off-Campus Employment

EAD (c) (3) (iii) F-1 Student, Off-Campus Employment Severe Economic Hardship

EAD (c) (4) Spouse/Dependent of G-1, G-3, or G-4

EAD (c) (5) J-2 Spouse or Child of J-1 Exchange Visitor

EAD (c) (6) M-1 Student, Practical Training

EAD (c) (7) Dependent of NATO-1 through NATO-6

EAD (c) (8) Asylum Application Pending filed on/after January 4, 1995

EAD (c) (8) Asylum Application Pending filed before January 4, 1995

EAD (c) (8) Asylum Application Pending filed before January 4, 1995

EAD (c) (8) Asylum Application under ABC Agreement

EAD (c) (9) Pending Adjustment of Status under Section 245 of the Act

EAD (c) (10) Suspension of Deportation Applicants (filed before April 1, 1997)

EAD (c) (11) Public Interest Parolee

EAD (c) (14) Deferred Action (not based on an approved I-360 petition filed fo

EAD (c) (14) Deferred Action (based on an approved I-360 petition filed for a b

EAD (c) (15) not in use

EAD (c) (16) Creation of Record (Adjustment Based on Continuous Residence)

EAD (c) (17) (i) B-1 Domestic of a Nonimmigrant

EAD (c) (17) (ii) B-1 Domestic of a USC

EAD (c) (17) (iii) Employee of a Foreign Airline

EAD (c) (18) Order of Deportation

EAD (c) (19) Temporary Treatment Benefits

EAD (c) (20) Section 210 Legalization

EAD (c) (21) S Visa Nonimmigrant


January 2, 2017

19

EAD (c) (22) Section 245A Legalization (pending I-687)

EAD (c) (23) Irish Peace Process (Q-2)

EAD (c) (24) LIFE Legalization

EAD (c) (33) Consideration of Deferred Action for Childhood Arrivals

*Special Note: Volunteering Information for Foreign Nationals:

A foreign national cannot perform work as a volunteer if the foreign national

believes that some form of compensation will follow. This specifically includes

volunteering for a trial period leading up to compensated employment.

A foreign national may not volunteer while awaiting work authorization or

change of status (that would enable them to work), even if for a few days.

Dependent family members of H1B, TN1, and O1 visa holders cannot work or

volunteer at UTRGV without participating in the normal recruitment and hiring

processes, including obtaining appropriate employment authorization.

Dependents of J-1 and E-3 beneficiaries MAY obtain a work permit for

unrestricted employment, but cannot volunteer until the EAD is in hand.

A person cannot perform work as a volunteer in a position that would normally be

a paid position. Defining a position as “unpaid” (e.g., an unpaid internship) or

“volunteer” does not mean that it is a legitimate volunteer position, given the

USCIS guidelines and other relevant labor and employment laws.

A UTRGV department or lab that engages in any of the aforementioned,

unauthorized volunteer situations is in violation of federal Immigration and Labor

Laws. Such violations may result in substantial fines and civil and/or criminal

penalties. The foreign national at UTRGV, volunteering as in the above

situations, will violate his or her visa status and may jeopardize his or her ability

to remain in or return to the United States.

Job Eligibility Tables in General Job Eligibility for H-1B nonimmigrant status and Immigrant/Permanent Resident Status

Titles Job Title Eligible for H-1B Eligible for Permanent Residency

Academic Professor X X

Associate Professor X X

Assistant Professor X X

Instructor X

Senior Lecturer X

Lecturer

X

Residents and Fellows

JH

x


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20

School of Medicine Clinical Professor x X

Clinical Associate Professor x X

Clinical Assistant Professor x X

Clinical Instructor

x

Professor in Practice x

Associate Professor in Practice x

Research Titles Job Title Eligible for H-1B Eligible for Permanent Residency

Professor of Research X

Associate Professor of Research X

Research Scientist X

Research Associate X

Research Assistant X

Postdoctoral Fellow

X

*Exceptions to the above criteria are considered for extraordinary circumstances on a case-by-case basis by the

Director for Human Resources and the Immigration Services Manager. A request for an exception must be first

submitted to our Human Resources Office

Job Eligibility for O-1 nonimmigrant status and Immigrant/Permanent Resident Status

Eligible Teaching Faculty

Positions

Eligible Research Positions

and common Staff

Positions

Staff Positions

Full-time tenured or tenure

track with title of:

Assistant Professor

Associate Professor

Full Professor

Clinical Professor

Full-time non-tenure track with

title of:

Professor of Research

Associate Professor of

Research

Research Scientist

Chess Coach

Athletic Coaches

Staff Internationally

Recognized

Not Eligible

*Exceptions to the above

criteria are considered for

extraordinary

circumstances on a case-

by-case basis by the

Director for Human

Resources and the

Immigration Services

Manager. A request for an

exception must be first

submitted to our Human

Resources Office.

The O-1 temporary worker visa status is designated for individuals of extraordinary ability in the sciences, education, business, arts or athletics and individuals of extraordinary achievement in the motion picture and television industries.


January 2, 2017

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Job Eligibility for Australians E-3 nonimmigrant status. Not Eligible for Immigrant/Permanent Resident Status

Eligible Teaching Faculty Positions Eligible Research Positions Staff Positions

Full-time tenured or tenure track

with title of:

Assistant Professor

Associate Professor

Full Professor

Lecturer

Clinical Professor

Full-time non-tenure track with title

of:



Research

Research Scientist

Research Associate

Librarians may be eligible

*Postdoctoral Fellows are not

eligible for sponsorship*

Not Eligible

*Exceptions to the above criteria

are considered for extraordinary

circumstances on a case-by-case

basis by the Director for Human

Resources, Chief Human Resources

Officer and/or The Office of the

Provost. A request for an exception

must be first submitted to the office

of the Provost

Australian Citizens in a “Specialty Occupation”;

Job Eligibility for Canadians/Mexicans TN nonimmigrant status. Not Eligible for Immigrant/Permanent Resident Status


Full-time tenured or tenure track

with title of:

Assistant Professor

Associate Professor

Full Professor

Lecturer

Instructor

Clinical Professor

Clinical Associate

Professor

Clinical Assistant

Professor


of:



Research

Research Scientist

Research Associate

Librarians may be eligible

*Postdoctoral Fellows are not

eligible for sponsorship*

Not Eligible









of the Provost

§ 214.6 Canadian and Mexican citizens seeking temporary entry to engage in business activities at a professional level. Complete List of Available Professions Covered by NAFTA

http://canada.usembassy.gov/visas/doing-business-in-america/professions-covered-by-nafta.html


January 2, 2017

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Job Eligibility for J1 nonimmigrant status. Not Eligible for Immigrant/Permanent Resident Status


Full-time not tenure track with title

of:

Visiting Assistant

Professor

Visiting Associate

Professor

Visiting Full Professor

Visiting Clinical Professor

Short Term Scholar


of:

Research Scientist

Research Associate

Research Assistant

Postdoctoral Fellow &

Associate

Research Scholar

Physicians (Residencies

and fellowships)

Not Eligible









of the Provost

J-1 Exchange Visitor - Official appointments such as research scholar, short term scholar, visiting faculty, postdoctoral or postgraduate fellows and associates, as well as other temporary academic appointments

IX. Related Statues, Polices, Requirements or Standards

1. Title 8, Code of Federal Regulations (DHS/USCIS)

2. Immigration and Nationality Act (INA)

3. Title 20 Code of Federal Regulations.html (DOL)

4. Title 22 Code of Federal Regulations (Foreign Relations – Munitions List)

5. Policy Library - UTRGV Handbook of Operating Procedures (HOP)

X. Other Related Helpful Resources and Guidelines

1. Human Resources – Immigration Services Website

2. U.S. Citizenship and Immigration Services (USCIS)

3. Department of State (DOS)

4. Department of Labor (DOL)

5. U.S Customs and Border Protection (CBP)

6. Foreign Affairs Manual Visas (DOS)

7. Adjudicator’s Field Manual (USCIS)

8. Export Administration Regulation (DOC/BIS)

9. Munitions List (International Traffic in Arms Regulations)

10. FN Driver’s License (TXDPS)

11. Social Security Administration (SSA)

12. Internal Revenue Service (IRS)

13. American Civil Liberties Union (ACLU/Know your Rights)

http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=8cfr

http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=act

http://www.ecfr.gov/cgi-bin/text-idx?node=pt22.1.121

http://www.uscis.gov/

http://travel.state.gov/content/visas/english.html

http://www.foreignlaborcert.doleta.gov/

http://www.cbp.gov/travel/international-visitors

http://www.state.gov/m/a/dir/regs/fam/09fam/index.htm

http://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1.html

http://www.bis.doc.gov/index.php/regulations/export-administration-regulations-ear

http://fas.org/spp/starwars/offdocs/itar/p121.htm

http://www.txdps.state.tx.us/DriverLicense/documents/verifyingLawfulPresence.pdf

http://www.ssa.gov/people/immigrants/

http://www.irs.gov/Individuals/International-Taxpayers

https://www.aclu.org/know-your-rights/what-do-if-youre-stopped-police-immigration-agents-or-fbi


January 2, 2017

23

XI. Forms

1. UTRGV H-1B Request Packet

2. Foreign National Application Checklist

XII. Contact Information

Please contact Alberto Castillo, Immigration Services Manager at the Office of Human

Resources with any questions or concerns regarding this procedure. He is available at 956 665-

3021 or [email protected] .

XIII. Disclaimer

The information contained in this procedure should not be construed as legal advice, but is

intended for the general, informational use by The University of Texas Rio Grande Valley

community members.

XIV. Operating Procedure Review

This Operating Procedure shall be reviewed every two (2) years, or as required by State or

Federal legislation, by the Immigration Services Manager and the Director of Human Resources.

mailto:[email protected]