This toolkit is designed to assist NMSU hiring departments by consolidating information needed to employ a foreign national when U. S. workers are not available to fill the position.
Getting Started with Employment-Based Sponsorship
During the recruitment and selection process, a hiring manager may identify a foreign national who needs employment-based sponsorship in order to be employed. The hiring department (petitioner) may sponsor the prospective employee (beneficiary) for temporary or permanent employment thus allowing the foreign national to work in the U.S. The following information is meant to be used as a guide for the different visas available for employment-based sponsorship.
To ensure that NMSU can properly meet its immigration-related legal and compliance responsibilities, Maney | Gordon | Zeller, P.A., has been retained to represent NMSU in all immigration matters. Maney | Gordon | Zeller, provides NMSU’s hiring departments with an initial attorney consultation, at no cost, to assist in evaluating the costs and benefits of sponsorship, and determine the best visa options available. The NMSU General Counsel Office encourages all heads of hiring departments to consult with Maney | Gordon | Zeller, prior to making a commitment to an employee or prospective employee with regard to visa sponsorship. Visa applications and related documentation may require signatures from multiple NMSU offices. General Counsel has advised that no signatures should be provided by any NMSU hiring department head or representative until the documentation has been routed through Human Resource Services for review and approval by Maney | Gordon | Zeller, Attorneys at Law.
Beneficiaries may consult with any legal counsel; however, all immigration related documents must be prepared and or approved by Maney | Gordon | Zeller.
Maney | Gordon | Zeller, P.A.
2305 Renard Place S.E. Suite 110
Albuquerque, New Mexico 87106
(505) 266- 8739
Carolina Regales, National Business Immigration Attorney
Tim Reardon, Senior Employment Paralegal
Initiating Legal Counsel
Hiring departments interested in employment-based sponsorship should complete the Foreign National Information Request Form. Submit the form to NMSU Human Resource Services via email to TeamHRS@nmsu.edu or deliver to Hadley Hall, Room 17 to initiate the process. Maney | Gordon | Zeller will provide an Employment Authorization Form which will authorize Maney | Gordon | Zeller to provide immigration legal services to the petitioner and beneficiary. The Engagement Agreement Form establishes appropriate processing procedures, legal fees, costs, obligations and rights of the petitioner and beneficiary. Human Resource Services will work as a liaison between the petitioner/beneficiary and Maney | Gordon | Zeller, during the employment based visa sponsorship process.
The United States Government controls exports of sensitive equipment, software and technology as a means to promote our national security interests and foreign policy objectives. Through our export control system, the U.S. government can effectively:
- Provide for national security by limiting access to the most sensitive U.S. technology and weapons
- Promote regional stability
- Take into account human rights considerations
- Prevent proliferation of weapons and technologies, including of weapons of mass destruction, to problem end-users and supporters of international terrorism
- Comply with international commitments, e.g. nonproliferation regimes and UN Security Council sanctions and UNSC resolution 1540
In addition to specific licensing requirements for tangible items exported from the United States to foreign destinations, Export Control regulations may also either prohibit or require licensing for the “deemed export” or release of certain technical information and data (which are treated as controlled commodities) to foreign nationals (generally, non-permanent resident foreign nationals), either within the United States or abroad. In most cases, information and data generated or developed through university research is exempt from Export Control restrictions. However, compliance with federal export control law requires that specific determinations be made as to whether the fundamental research exemption, or any other exemption available under Export Control regulations, applies to a particular research project.
In order for NMSU to comply with export control regulations, the Office of Grants and Contracts facilitates such determinations by reviewing the Export Control Questionnaire. Hiring departments seeking employment authorization for a foreign national must complete the Export Control Questionnaire and route to Research Administration Services to ensure the university’s compliance with export control regulations. This form must be submitted to Research Administration Services no later than the day the Foreign National Information Request Form is submitted to Human Resource Services.
H-1B Non-Immigrant Visa Status Overview
H-1B non-immigrant status is commonly requested by hiring departments (petitioner) on behalf of the prospective foreign national employee (beneficiary) who is coming to the U.S. to perform services in a “specialty occupation”. A “specialty occupation” is one that requires the theoretical and practical application of a body of highly specialized knowledge. The maximum duration of H-1B status is six (6) years, minus any time spent in L-status. Any time spent outside of the U.S. while on H-1B status and that is documented may be “recaptured” to complete the six years. The H-1B status cannot be extended beyond the six years unless a labor certification or an I-140 Immigrant petition has been filed. At the latest, this process should be initiated in the employee’s fourth year of H-1B status to avoid delays and ensure eligibility.
Click here for other Temporary (Non-immigrant) Worker options.
Requirements and Eligibility
The beneficiary and the job must meet eligibility requirements for H-1B status. H-1B status is position and employer-specific. Meaning, an individual in H-1B status may only work in the exact position with the employer for which the H-1B petition was filed.
The position must meet one of the following criteria to qualify as an H-1B specialty occupation:
- Minimum requirements of the position are a Bachelor’s degree or higher
- The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree
- The employer normally requires a degree or its equivalent for the position
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
The beneficiary must meet one of the following criteria to qualify for sponsorship:
- Completion of a U.S. bachelor’s degree or higher required for the specific occupation from an accredited college of university
- Completion of a foreign degree that is the equivalent to a U.S. bachelor’s degree in the specialty occupation
- Have an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment
- Completed education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty occupation
The hiring department (petitioner) and foreign national (beneficiary) must complete a multi-step process prior to the beneficiary obtaining an employment based H-1B Visa status. The hiring department will file a Labor Condition Application (LCA) with the Department of Labor (DOL) Office of Foreign Labor Certification. DOL ensures that the admission of the foreign workers to the U.S. workforce will not adversely affect the job opportunities, wages and working conditions of U.S. workers. The approved LCA is then submitted to USCIS with Form I-129 for visa approval. The processing time for obtaining an H-1B Visa status can vary and will depend on the nature of the petition and whether the issuance of a Request for Evidence is issued. Premium processing may be available.
Cost and Legal Fees
The petitioner (hiring department) is responsible for all the cost of the H1B (legal fees, filing fee, premium processing fee – if elected by department, etc.) and may not seek reimbursement from the beneficiary. The cost will be outlined in the invoice provided by Maney | Gordon | Zeller and will also be included in the Engagement Agreement.
USCIS filing cost for Form I-129 Petition for a Non-immigrant Worker: $460
USCIS filing cost for Form I-907 Request for Premium Processing Service: $1,410
(This fee is in addition to the required base filing fee and other applicable costs that cannot be waived.)
Special Note: If an H-1B worker is terminated prior to the end of the period of the foreign national’s admission, the employer is liable for “the reasonable costs of return transportation of the foreign national abroad”. To demonstrate a bona fide termination of the employment relationship, an employer must expressly terminate the employment relationship with the H-1B worker, provide express notification to USCIS of the termination, and then provide the H-1B worker with payment of return transportation costs home. If the H-1B worker voluntarily terminates employment prior to the expiration of the authorized H-1B stay or is dismissed when the authorized stay has ended, the employer is not liable for return transportation costs. Regulations that took effect on January 18, 2017 provide for a 60 grace period, “up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter,” so that H-1B workers experiencing a termination of employment will have time to either depart the U.S. or change or extend their immigration status without being considered out of status.
Immigrant Visa Status Overview (Lawful Permanent Resident)
A Lawful Permanent Resident is an individual who is authorized to live and work permanently in the United States. The hiring department (petitioner) may choose to sponsor a foreign national (beneficiary) to become a Lawful Permanent Resident based on a permanent job offer. The petitioner may sponsor a foreign national who may qualify for one or more of the Employment-Based (EB) immigrant visa categories. The EB category relates to the position requirements and kind of work that the foreign national will be engaged in. Each EB category has certain requirements that must be met. See below.
Permanent Worker Visa Preference Categories
- First Preference EB-1– This preference is reserved for individuals of extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors or researchers; and multinational executives and managers.
- Second Preference EB-2– This preference is reserved for individuals who are members of the professions holding advanced degrees or for individuals with exceptional ability in the arts, sciences, business or for individuals seeking a national interest waiver.
- Third Preference EB-3– This preference is reserved for professionals, skilled workers, and other workers:
- Skilled worker: Individual whose job requires a minimum of 2 years training or work experience.
- Professional: Individuals whose job requires at least a US baccalaureate degree or a foreign equivalent and are a member of the professions.
Unskilled or other worker: Individuals performing unskilled labor requiring less than 2 years training or experience, not of a temporary or seasonal nature.
The hiring department (petitioner) and foreign national (beneficiary) must complete a multi-step process prior to the beneficiary obtaining Lawful Permanent Residency status. Depending on the EB category recommended by Maney | Gordon | Zeller, the process of obtaining a Lawful Permanent Resident status will differ. For most EB-2 and all EB-3 categories, the employer must first obtain a certified Labor Certification
from the DOL Employment and Training Administration (ETA). DOLETA will verify that there are no available, qualified, and willing U.S. workers to fill the position; and that hiring the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. Once the Labor Certification application is certified by DOLETA, it will be submitted to the USCIS with a Form I-140, Immigrant Petition for Alien Worker and supporting documents.
Applications filed with the Department of Labor and USCIS are subject to processing times that cannot be controlled by NMSU or legal counsel. Processing times are also influenced by the complexity of the case, and by additional requests the government may have from time to time. DHS offers premium processing for some applications.
The final stage of the permanent residency process is the beneficiary’s application for U.S. permanent residence, which involves the foreign national’s personal qualifications under the Immigration and Naturalization laws. This process is conducted by USCIS or by the State Department of the United States through a U.S. Consulate in the foreign national’s country of origin. To view the backlog of immigrant numbers, visit the Visa Bulletin by the Bureau of Consular Affairs.
Cost and Legal Fees
USCIS filing cost for Form I-140 Immigrant Petition for Alien Worker: $700
The petitioner and beneficiary will be responsible for paying Maney | Gordon | Zeller, P.A. fees and costs for providing legal counsel. If the legal permanent residence process requires a labor certification, the petitioner will be responsible by law for paying for the cost of the labor condition and may not seek reimbursement from the beneficiary.
No legal restrictions presently exists as to who must pay the legal fees and costs for the I-140 Immigrant Petition for Alien Worker; therefore, these can be paid by the beneficiary. It is recommended that the employment offer state who will be responsible for the I-140 Immigration Petition for Alien Worker legal fees and costs.
Legal fees will be established at the time of consultation and outlined in the Employment Authorization Form provided by Maney | Gordon | Zeller.
Special Handling Labor Certification – Permanent Residence
The Special Handling Labor Certification process was created with universities in mind. This process allows universities to sponsor foreign national teaching faculty that were selected through a competitive recruitment and selection process for U.S. permanent residence.
Special handling allows the employer to recruit for the position nationally and select an employee before submitting a labor certification with the Department of Labor (DOL). With Special Handling, the employer is permitted to hire the most qualified applicant rather than any minimally qualified U.S. worker as required in other permanent resident processes. Special Handling Labor Certifications must follow DOL requirements in order for the employee to be eligible for this option.
Special Handling cases are limited to teaching positions. Faculty members are not necessarily teachers, thus, non-teaching positions such as researchers, librarians, or other administrative staff must use alternative permanent resident processes, including PERM Labor Certification or National Interest Waiver applications. In practice, a faculty position with a combination of teaching duties and administrative/research duties may qualify for Special Handling.
Selection Decision Requirement
An important aspect of Special Handling is that an application must be filed within 18 months after the date the formal selection decision is made. If the application is not filed within 18 months, then the employer will not be eligible to file for the foreign national using the Special Handling procedure. Departments that are considering hiring a foreign national, or have recently hired a foreign national and are interested in sponsoring the foreign national for permanent residence should schedule a consultation with NMSU’s immigration counsel as additional steps must be taken prior to this 18 month time period.
The position must be advertised in an electronic or web-based national journal for at least 30 calendar days on the journal’s web site. The listing must be available to the public without payment of subscription and/or membership charge. This advertisement must contain the job title, duties, and requirements, but the wage offered is not necessary. Proof of the online posting (printed copies of the online advertisement from the first and last days of advertising) with the date and website must be provided.
F-1 Visa – Student Visa
Paperwork is handled by the students, International Student and Scholar Services (ISSS) and USCIS. For Curricular Practical Training, ISSS makes a notation on the student’s copy on the I-20 form indicating that Curricular Practical Training has been authorized, and specifying the duration and place of employment. Students authorized for Optional Practical Training are required to apply to USCIS (through the International Student Office of the school) for an Employment Authorization Document (EAD).
Optional Practical Training is temporary employment that is directly related to an F-1 student’s major area of study. Eligible undergraduate and graduate students who have completed or have been pursuing their degrees for one academic year and will be completing their studies can apply to receive up to 12 months of employment authorization.
While employees may hold an OPT work authorization status while working for NMSU, those who will need further work authorization, beyond the one (1) year, must change status to the appropriate temporary work visa.
Optional Practical Training OPT – STEM Extension Not Authorized
NMSU, in consultation with Maney | Gordon | Zeller, has determined that sponsorship of Optional Practical Training STEM Extension at NMSU cannot be supported. This is resulting from USCIS compliance requirements that NMSU cannot meet.
J-1 Visa – Exchange Visitor Program
The J-1 visa category is an Exchange Visitor Program intended for non-resident alien individuals who intend to participate in an approved work-and study-based exchange visitor programs. The approved program is for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training.
The Exchange Visitor Program is administered by the United States Department of State and has certain regulations and restrictions that may not apply to other visa categories. To determine if the J-1 Exchange Visitor Program is in the best interest of the university and beneficiary, departments are encouraged to contact International Student and Scholar Services who may assist in the process of obtaining this visa category.
TN Visa – TN NAFTA Professionals
TN visas are employer and position specific. A letter signed by the hiring department and Human Resources is required. Please contact email@example.com for a template letter. The department may elect to work with Maney | Gordon | Zeller, if so, please complete and route the Foreign National Information Request form.
Eligibility for NAFTA Professional (TN) Nonimmigrant Status – Canadians and Mexicans may be eligible to work in the United States as NAFTA professionals under the following conditions:
- Applicant is a citizen of Canada or Mexico;
- Profession is on the NAFTA list;
- Position in the United States requires a NAFTA professional;
- Applicant will work in a prearranged full-time or part-time job for an employer (see Required Documentation). Self employment is not permitted;
- Applicant has the qualifications, meeting the specific requirements, education, and/or experience, of the profession.
For some professions, experience is required in addition to the degree. For a complete list of professions with minimum education requirements and alternative credentials, see Appendix 1603.D.1 of NAFTA Chapter 16.
Frequently Asked Questions