Hiring Foreign National Employees

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 the Employment-Based Sponsorship Process

New Mexico State University as the employer may need to hire foreign nationals when a U.S. citizen is not available to perform the duties. During the selection process, a hiring manager may identify a prospective employee who needs employment-based sponsorship in order to be employed. The hiring department (petitioner) has the option to withdraw the offer of employment or may sponsor the prospective employee (beneficiary) by petitioning to obtain appropriate immigration documentation that allows the individual to work in the U.S. If sponsorship is in the best interest of the hiring department and university the hiring manager will need to consider whether they want to petition for a non-immigrant visa for a temporary stay, or an immigrant visa for Permanent Resident status in the United States.

 

Optional Practical Training OPT – STEM Extension Not Authorized

Optional Practical Training is a period during which undergraduate and graduate students with F-1 status who have completed or have been pursuing their degrees for more than nine (9) months are permitted by the United States Citizenship and Immigration Services (USCIS) to work for one (1) year on a student visa towards getting practical training to complement their education.

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 seek one of the other sponsorship options below.

NMSU, in consultation with Maney/Gordon, has determined that sponsorship of Optional Practical Training STEM Extension 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.

Legal Counsel

To ensure that NMSU can properly meet its immigration-related legal and compliance responsibilities, Maney & Gordon, P.A., has been retained to represent NMSU in all immigration matters. Maney & Gordon provides NMSU’s hiring departments with an initial attorney consultation, at no cost, to assist departments in evaluating the costs and benefits of sponsorship, and determining the best visa options available. The NMSU General Counsel Office encourages all heads of hiring departments to consult with Maney & Gordon 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 Attorneys at Law.
General Advice from General Counsel regarding Immigration Petitions.

Beneficiaries may consult with any legal counsel; however, all immigration related documents must be prepared and or approved by Maney & Gordon. The petitioner and beneficiary will be responsible for paying Maney & Gordon fees and costs for providing legal counsel. The petitioner will be responsible for paying all government processing fees and may not seek reimbursement from the beneficiary. The petitioner should determine the portion of the attorney fees it expects the beneficiary to pay, and should be explicitly noted in the employment offer letter.

Laura Hendrickson, J.D., Associate Attorney
2305 Renard Place S.E. Suite 110
Albuquerque, New Mexico 87106
(505) 266- 8739
l.hendrickson@maneygordon.com
Allison Kranz, J.D., LL.M, Managing Attorney
2305 Renard Place S.E. Suite 110
Albuquerque, New Mexico 87106
(505) 266- 8739
a.kranz@maneygordon.com

 

Tim Reardon, Senior Employment Paralegal
2305 Renard Place S.E. Suite 110
Albuquerque, New Mexico 87106
(505) 266- 8739
t.reardon@maneygordon.com
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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 a consultation with Maney & Gordon. Maney & Gordon will provide an Employment Authorization Form which will authorize Maney & Gordon to provide immigration legal services to the petitioner and beneficiary. The Employment Authorization Form establishes appropriate processing procedures, fees, obligations and rights of the petitioner and beneficiary. Human Resource Services will work as a liaison between the petitioner/beneficiary and Maney & Gordon during the employment based visa sponsorship process.

 

Export Control

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, i.e. 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 should complete the Export Control Questionnaire and route to the Office of Grants Contracts to ensure the university’s compliance with export control regulations. This form should be submitted to the Office of Grants Contracts no later than the day the Foreign National Information Request Form is submitted to Human Resource Services.

 

Non-Immigrant Visa Status Overview (H-1B)

H-1B non-immigrant status is commonly requested by hiring departments (petitioner) on behalf of the employee or prospective 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. That is, any time spent outside of the U.S. while on H-1B status and that is documented may be “recaptured”. When the expiration date of an H-1B Visa status is approaching, the H-1B Visa status cannot be renewed unless a Permanent Resident petition has been filed. This process should be initiated in the employee’s fourth year of H-1B status to avoid delay. 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

General Process

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 an approved 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 the USCIS with Form I-129 for immigration authorization. The processing time for obtaining an H-1B Visa status will depend on the nature of the petition; however, premium processing may be available.

Cost and Fees

Form I-129 Petition for a Non-immigrant Worker: $325

Form I-907 Request for Premium Processing Service: $1,225
(This fee is in addition to the required base filing fee and other applicable fees that cannot be waived.)

Attorney Fees will be established at the time of consultation and outlined in the Employment Authorization Form provided by Maney & Gordon.

 

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 current or prospective employee who may qualify for one or more of the Employment-Based (EB) immigrant visa categories. The EB category relates to the kind of work that the non-immigrant will be engaged in. Each EB category has certain requirements that must be met. See below.

Permanent Worker Visa Preference Categories

  • First Preference EB-1This 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, or business.
  • 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.
  • Fourth Preference EB-4 This preference is reserved for “special immigrants,” which includes certain religious workers, employees of U.S. Foreign Service posts, retired employees of international organizations, alien minors who are wards of courts in the United States, and other classes of aliens.
  • Fifth Preference EB-5 – This preference is reserved for business investors who invest $1 million or $500,000 (if the investment is made in a targeted employment area) in new commercial enterprise that employees at least 10 full-time U.S. workers.

General Process

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, the process of obtaining a Lawful Permanent Resident status will differ. For some visa categories, before the hiring department can submit an immigration petition to the USCIS the employer must obtain a certified Labor Certification from the DOL Employment and Training Administration (ETA). DOLETA will verify that there are insufficient available, qualified, and willing U.S. workers to fill the position being offered at the prevailing wage; 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 Service Center with a Form I-140, Immigrant Petition for Alien Worker.

The processing time for Permanent Labor Certification will depend on the nature of the petition and will vary between months and/or years. Once the Permanent Labor Certification is certified by DOLETA, Maney & Gordon will submit to the USCIS along with Form I-40 and supporting documents. The processing time taken by USCIS to approve or reject the I-140 will depend on whether a Request for Evidence (REF) is issued, duplicate REFs are issued, or if a Notice of Intent to Deny (NOID) is issued. To view the backlog of immigrant numbers, visit the Visa Bulletin by the Bureau of Consular Affairs.

Cost and Fees

Form I-140 Immigrant Petition for Alien Worker: $580

Attorney Fees will be established at the time of consultation and outlined in the Employment Authorization Form provided by Maney & Gordon.