Visa Policy for USF Employees

Effective Date	September 20, 2016
Last Updated	September 24, 2016
Responsible University Officer	Martha Peugh-Wade, Associate Vice President, Compliance and Compensation
Policy Owner	Diane Nelson, Assistant Vice President, Human Resources
Policy Contacts	Human Resources

Policy Statement

In compliance with federal law, all employees of the University of San Francisco (the "University") must be citizens of the United States (U.S.), U.S. Nationals, Lawful Permanent Residents, Asylees, Refugees, or Temporary Residents under the 1986 amnesty program, or hold some other form of employment authorization. Prospective employees who cannot be classified within the aforementioned categories are Foreign Nationals and must apply for and obtain some form of authorization from U.S. immigration authorities in order to work at the University.

The University’s Visa Policy (the “Policy”) outlines the University’s support given to its current and prospective employees who are Foreign Nationals.

Reason for Policy

The federal government provides employment visa sponsorship provisions to help employers that cannot otherwise obtain needed business skills and abilities from the U.S. workforce. Positions that do not require a specialized skill set cannot receive visa sponsorship. Only positions requiring a minimum education of a bachelor’s degree or higher are eligible for visa sponsorship.

The process for sponsoring employment visas for Foreign Nationals is complex and sometimes lengthy. Success in obtaining approval for an employment visa is dependent upon the law, regulation, and procedures of the U.S. Citizenship and Immigration Services (USCIS). U.S. immigration laws are complex and change frequently. Thus, the University cannot guarantee the approval of a visa application (the “Visa Petition”). However, the University will support the application process for prospective employees who are Foreign Nationals as outlined in this Policy.

Furthermore, this Policy outlines the procedures to be followed should a University department (the “Sponsoring Department”) wish to employ a Foreign National, including instructions on obtaining the appropriate visas for such individuals.

Who Should Read this Policy

Current University employees with employment immigration visas, University visa candidates, managers who supervise current employees with visas, managers who may supervise visa candidates, members of the Leadership Team, Business Managers, and hiring managers. For assistance with J-1 Visas (Exchange Visitors) and F-1 Visas (Academic Students), please contact Associate Director Marcella DeProto at (415) 422-2193 or mjdeproto@usfca.edu in the Office of International Students and Scholars.

Policy Text

Human Resources is the initial point of contact for all employment visa sponsorships, except for those in the College of Arts and Sciences, and will coordinate all activities necessary for the submission of employment Visa Petitions to USCIS. Human Resources is also the liaison that coordinates between the Sponsoring Department, Visa Candidate, and the University’s immigration law firm. For assistance with employment visa sponsorships in the College of Arts and Sciences, please contact Anna Haight at (415) 422-6775 or ahaight@usfca.edu.

Although it most frequently assists with H-1B and Permanent Workers Visa Petitions, Human Resources will consult with the University’s authorized immigration law firm regarding which Visa Petition is the most appropriate for each Visa Candidate. The following provides an outline for the sponsorship of H-1B and Permanent Workers visas, which are sponsored by the University most often.

H-1B VISA

The H-1B visa is a temporary, nonimmigrant visa that is signed and submitted by a U.S. employer on behalf of a Foreign National (i.e. the visa is employer-sponsored and employer-specific). Foreign Nationals cannot apply for an H-1B visa to allow them to work in the U.S., but rather, H1-B visas must be petitioned by employers for their entry. If Foreign Nationals are granted H-1B status, they are authorized to work only for the petitioning employer for up to six years (i.e. two cycles of three years). Sometimes the H1-B status period can be extended under certain circumstances.

The Department of Labor considers the costs related to filing an H-1B Visa Petition to be a business expense of the employer. As such, the Sponsoring Department at the University must pay the attorney fees as well as filing fees associated with an H-1B Visa Petition. The Foreign Worker shall not be required to pay any part of such fees or costs, either directly or through reimbursement.

When filing an H-1B Visa Petition, the Sponsoring Department must attest that it is paying the Required Wage Rate to ensure that the wage offered to the Foreign National does not fall below Prevailing or Actual wage guidelines.

If the Visa Candidate is not eligible for an H-1B visa but qualifies for another temporary, nonimmigrant visa, the Sponsoring Department will pay the attorney and filing fees associated with the other nonimmigrant visa application as required by the Department of Labor.

Visa Candidates can be asked to pay for legal fees that pertain to visas for their family member(s). Visa Candidates can also be asked to pay premium processing fees only if they wish to expedite the process and if the delay is not caused by a lack of planning on the part of the Sponsoring Department.

If Foreign Workers are terminated before the end of their period of authorized admission in H-1B status, the Sponsoring Department must inform Human Resources immediately. Human Resources will work with the University’s immigration law firm to revoke the H-1B visa. The Sponsoring Department is liable for the reasonable costs of return transportation, including a return plane ticket, of Foreign Workers to their last place of foreign residence. Neither the Sponsoring Department nor the University is liable for the costs of return transportation of foreign workers’ family members or belongings. The University is not obligated for costs of return transportation if the employment is terminated by the Foreign Worker.

H-1B Foreign Workers must be paid their regular salaries even during periods when the employer does not have work for them. Therefore, the University’s adjunct faculty are ineligible for H1-B visa sponsorship.

Permanent Workers Visa

The University may, but is under no obligation to, sponsor Foreign Workers for legal permanent residence in the U.S. The decision to provide University support for an application for permanent residence will be made on a case-by-case basis.

Foreign Workers may obtain permanent residence (i.e. a green card) through a Permanent Workers Visa if all USCIS requirements are met. At the University, candidates will only be eligible for sponsorship of a Permanent Workers Visa if they have been employed at the university for at least two consecutive years. USCIS requires that a specific period of recruitment on designated recruitment platforms be made to prove that the University made an effort to test the labor market to fill the position with a minimally qualified U.S. worker but was unsuccessful. Specifically, the University can file a Permanent Workers Visa Petition with USCIS upon showing that it satisfied labor certification requirements (i.e. PERM), including skills and education verification and recruitment.

In collaboration with the Sponsoring Department and the University’s immigration law firm, Human Resources will create the job posting on platforms designated by USCIS. Any University costs incurred above the allowance shall be paid in full by the Sponsoring Department.

All applicants who meet the job requirements stated in the recruitment text of the job posting must be interviewed. The Sponsoring Department is responsible for interviewing all qualified candidates. Under U.S. law, it is not permitted to reject U.S. workers who are capable of acquiring the skills necessary to perform the job within a reasonable period of on-the-job training. The Sponsoring Department must submit their interview notes to Human Resources for review by the University’s immigration law firm. If qualified applicants are not selected, the interview notes must state clearly why they were was not offered the position.

The Sponsoring Departments should contact Human Resources several months in advance of the candidate’s start date to allow for enough time to gather the required paperwork and to prepare the Permanent Workers Visa Petition to be submitted to USCIS. After filing for a Permanent Workers Visa Petition, it takes anywhere from three months to a year (or more) to receive a response from USCIS, not including the time it takes to gather the necessary information from the candidates. Other factors, such as the political relationship between the U.S. and the candidate’s country of origin, may lengthen the Permanent Workers Visa Petition process.

As required by federal regulation, the University’s immigration law firm attorney’s fees and costs directly associated with the filing of a PERM Labor Certification Application as part of the permanent residency process shall also be paid by the Sponsoring Department, and the candidate shall not be required to pay any part of such fees or costs, either directly or through reimbursement. It is recommended that the Sponsoring Department pay for the I-140 Visa Petition (i.e. the University’s Permanent Workers Visa Petition for current Foreign Workers who have been employed at the university for at least two years). Finally, it is also recommended that the Sponsoring Department pay for the I-485 application (i.e. Foreign Workers’ application for permanent residence-green card application), which may include an application for advance parole, allowing them to leave the country, and employment authorization, allowing them to work while waiting.

Procedures

Should a University’s hiring department wish to hire a Foreign National for an open position, it will act as a Sponsoring Department for the Visa Petition. The Sponsoring Department must decide if it wants to hire a Foreign National prior to starting the interview process for an open position. The coordinator from the Sponsoring Department should gather the following information to start the Visa Petition process:

• Written approval (via email to humanresources@usfca.edu) from the Vice President of the Sponsoring Department who must approve the visa sponsorship and agree to the payment of fees associated
• Job description and title of an open position for which Visa Candidate is applying; job descriptions for staff positions must be graded by Human Resources, which takes about 3-5 days, and must be posted for the appropriate amount of time
• Visa Candidate’s potential start date for the open position
• Salary offered to Visa Candidate, which must meet the Department of Labor's Prevailing Wage determination; if the salary offered does not meet the government’s minimum salary requirement, an adjustment to the salary offered must be made
• Visa Candidate’s resume, which must include education history
• Visa Candidate’s current visa status, if any, and expiration date
• Visa Candidate’s current residence location
• Visa Candidate’s status in a Union(s)
• Identify if the Visa Petition is for the Visa Candidate only or if the Visa Candidate’s family member(s) require assistance with obtaining visas as well; the University is not obligated to pay fees associated with obtaining visas for family members

Once the aforementioned information has been gathered, the coordinator of the Sponsoring Department should contact Human Resources to request the sponsorship of a Visa Candidate. The coordinator must be available to support Human Resources and the Visa Candidate throughout the entire Visa Petition process, and the Visa Candidate must reply promptly to all requests for information needed in order to complete the Visa Petition.

Employment offers to Foreign Nationals from the University are contingent upon the approval of the Visa Petition by USCIS. The approval date of the visa will also need to take place by the agreed-upon start date in order for the employment offer to be valid.

For more information about the specific procedures for the H1-B and Permanent Workers visas, please reference the Policy Text section of this Policy.

EXTENSIONS AND RENEWALS OF NONIMMIGRANT VISA STATUS

Some Foreign Workers at the University who are in Nonimmigrant Visa status may require an extension of their visa. In order to ensure the timely filing of an extension, it is the responsibility of the Foreign Worker at the University who holds the current visa and the Sponsoring Department to inform Human Resources of the need for an extension no less than six months prior to the visa’s expiration date.

AUTHORIZATION

The University has no legal obligation to sponsor an employment visa. The University supports only Visa Petitions that it authorizes. Visa Petitions submitted without the approval of Human Resources are not binding. Privately retained attorneys do not have the authority to represent the University in these matters unless authorized by Human Resources on behalf of the University. All immigration documents filed by or on behalf of the University must be approved by Human Resources. Because a Visa Petition is signed and filed in the name of the University of San Francisco, the University must be assured of the professional competence and integrity of any attorney representing the University. Therefore, the University has the right to require the Sponsoring Department and the Visa Candidate to work with a lawyer/law firm of its choice. Ultimately, employment offers to Foreign Nationals from the University are contingent upon the approval of the visa by USCIS.

This Policy shall be in effect until it is changed, modified, revised, amended or terminated. The University may change, modify, revise, amend, or terminate this Policy at any time, for any reason, with or without prior notice.

The University’s agreement or willingness to sponsor any Foreign National for a temporary visa classification or for legal permanent residence is not a contract of employment and does not supersede any of the University’s policies, agreements, or handbooks relating to employment. In addition, any statement made by the University or any of its faculty or staff in support of any immigration-related application or petition shall not supersede or be a part of any employment-related evaluation, including evaluations for tenure, promotion, pay increases or new appointments.

VIOLATIONS

Foreign Nationals/Foreign Workers

All Foreign Nationals must obtain permission to work legally in the United States. Each employment category for admission has different requirements, conditions, and authorized periods of stay. If approved, Foreign Workers must adhere to the terms of their applications or petitions for admission and visa. Any violation can result in removal or denial of re-entry into the United States. All Foreign Workers must complete the Form I-9 hiring paperwork upon USCIS’s authorization of their visa. If Foreign Nationals’ employment visas are denied by the USCIS, they cannot provide documentation demonstrating eligibility for employment in the U.S., and therefore, employment offers made to the candidates by the University will be withdrawn.

In the event that the Foreign Worker has concealed or misrepresented any aspect of their immigration or work history, or is inadmissible or removable under federal immigration law, the University reserves the right to withhold sponsorship or support for the foreign worker and/or to request the withdrawal of any pending Petition or the revocation of any approved Petition.

Employers

Employers who violate the law (e.g. hiring Foreign Nationals without visas, employing Foreign Workers with expired visas, etc.) will be subject to civil fines, criminal penalties (when there is a pattern or practice of violations), debarment from government contracts, a court order requiring the payment of back pay to the individual discriminated against, and/or a court order requiring the employer to hire the individual discriminated against.