US Permanent Residence Overview Tufts International Center April

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US Permanent Residence Overview Tufts International Center April 23, 2021

Before We Begin This session will be recorded Recording and Powerpoint will be made available following end of workshop Powerpoint will also be posted to our web site ( Q&A period will be at the end

Today’s Presenters Andrew Shiotani Director Tufts International Center [email protected] Ghenwa Hakim Associate Director Tufts International Center [email protected]

Workshop Agenda US permanent residence overview Tufts sponsorship of employees for permanent residence EB-2A Advanced Degree pathway to permanent residence Other matters Q&A and conclusion Also refer to the Permanent Residents section of our web site at partments/permanent-resid ents

US Permanent Residence Overview and Context

Terms and Terminology Different terms are often used to refer to permanent residents and the process of obtaining permanent residence “Lawful permanent residents”; “LPR” “Green card holders” “Immigrant visa holders” “Adjusting to permanent resident status” ”Obtaining immigrant status” “Applying for an immigrant visa” In this presentation, we will use these terms more or less interchangeably, but we will note any differences if and when significant

Benefits of Permanent Residence US permanent residence confers important rights, privileges and benefits Right to remain in US permanently without time restrictions Ease of exit and re-entry to the US, no visa required Generally unrestricted rights to employment, including self-employment Eligibility for certain jobs and certain federal grants and contracts Family and financial benefits (eligibility to sponsor certain family members for permanent residence, eligibility for in-state tuition, Social Security and death benefits, etc.) As such, the offer of permanent residence sponsorship can be an important recruitment and retention tool for departments and hiring units in relation to foreign national employees

Multiple Pathways to Permanent Residence The US immigration system provides multiple pathways to permanent residence, such as Family-based immigration (FB) Employment-based immigration (EB) Diversity Lottery (DV) Humanitarian protection and other specialized categories Within some of these pathways there are different “preference categories” or tiers, which set out different qualifications and eligibility criteria An individual can pursue permanent residence across different pathways at the same time – e.g., through family-based and employment-based immigration – as long as they meet the eligibility requirements for each

Recent Statistics In 2019, about 1 million immigrants became new permanent residents 69% from family-based immigration (including immediate relatives and other family relatives) 14% from employment-based immigration 10% from humanitarian categories 4% from diversity lottery Source: Migration Policy Institute

Sponsorship Requirements In many (but not all) cases, a person must have a sponsor in order to pursue permanent residence Qualifying family relation (e.g., US spouse) in family-based immigration Employer for many types of employment-based immigration Certain types of permanent residence categories are “self-sponsoring,” i.e., individual can sponsor themselves based on their qualifications and the specific self-sponsorship criteria Example: there is a permanent residence category called the EB-2 National Interest Waiver, which allows persons to self-sponsor if their research or work is in the “national interest”

Employer Sponsor Obligations When an employer such as Tufts University acts as a sponsor in a permanent residence process on behalf of a foreign national beneficiary, it assumes certain financial and legal obligations These may include, but are not limited to: Payment of certain required fees, including attorney and government filing fees Making legally binding attestations and commitments regarding the job opportunity, wages, and working conditions Making attestations regarding the manner in which the foreign national employee was recruited

When is Sponsorship Not Required? Even within employment-based permanent residence, certain categories do not require University sponsorship These include the EB-1 Extraordinary Ability preference category and the EB-2 National Interest Waiver - these generally require high level of accomplishment and recognition and/or demonstration that their research is in the national interest In these cases, the University does not play a direct role in sponsoring the individual – although departments may be asked to verify details and facts about the individual’s employment situation, or other relevant information, depending on the process

Tufts Sponsorship of Permanent Residents

Tufts as Permanent Residence Sponsor In the remainder of this workshop, focus is on Tufts' role when it sponsors an employee for permanent residence Not all employees may need or choose to be sponsored by Tufts Example: employee may be eligible to obtain permanent residence through family relationship or independently, through self-sponsorship Determining which employees may be offered sponsorship, and when the offer should be made, will depend on the employee’s position, individual school policies, and other factors

Steps from Temporary to Permanent Sponsorship 1. Recruitment: after an offer is made, a foreign national employee will indicate need for visa sponsorship in order to accept Tufts' offer of employment Department or hiring unit should contact the International Center to initiate temporary work visa (usually H-1B) 2. Permanent Resident Sponsorship: after temporary visa processes have been initiated, permanent resident sponsorship may be offered Does the job qualify under federal regulations? Does the job qualify under Tufts sponsorship policies? Does the person have the support of the department and dean? When is the appropriate time to initiate sponsorship procedures?

Tufts Sponsorship: Basic Roles & Requirements Tufts can only sponsor employees offered permanent, full-time employment Permanent employment can be tenure-track or other recurring employment Employment must also be classified as full-time Department chair and school dean approval required before sponsorship processes can be initiated Or: Unit director and division VP approval needed for administrative units International Center responsible for reviewing all requests and referring cases to a University-approved immigration attorney for processing

Waiting Period? Does the employee have to perform a certain # of years of service before being eligible for Tufts sponsorship? From a legal standpoint, no – sponsorship can proceed once it is determined that the employee has been offered a permanent, full-time position Functionally, having employee provide 1-2 years of service at minimum before starting sponsorship is often advisable, so department can evaluate employee Sponsorship should be offered to employees where there are critical staffing needs and for which recruitment of US workers is very difficult As a rule of thumb, employee should be expected to remain in position for up to three years once sponsorship process is initiated However, definite advantages to starting process early for tenure-track or permanent faculty with teaching responsibilities (discussed below)

Sponsorship Decisions Sponsorship decisions are shaped by a combination of US federal regulatory requirements University policy School policies, where written / established Individual employee and department decisions and interests The International Center works actively with schools to help them shape sponsorship policies We encourage formal policies to ensure consistency and transparency in decision-making

EB-2A Permanent Residence with PERM Labor Certification Requirements

EB-2A Advanced Degree Pathway to LPR As mentioned earlier, there are multiple pathways to permanent residence Within employment-based immigration, the employment-based, 2nd preference category, subcategory A “Advanced Degree” (EB-2A) pathway is perhaps the most common route to permanent residence for Tufts faculty and researchers Some employees may pursue other pathways where appropriate, but we’ll focus on the EB-2A Advance Degree pathway for the remainder of this workshop

Employment-Based Permanent Residence There are five different categories within Employment-based permanent residence 1st Preference EB-1A EB-1B Extraordinary Ability Outstanding Professor / Researcher 2nd Preference EB-2A Advanced Degree EB-2B Exceptional Ability EB-2 NIW National Interest Waiver Self-Sponsored* Infrequent MOST COMMON Extremely Infrequent Self-Sponsored* 3rd – 5th Preference Categories EB-3 subcategories are not sponsored by Tufts EB-4 and EB-5 preference categories are not relevant to Tufts / higher education * Self-sponsored – employer not required to directly sponsor individual for this option

EB-2A Advanced Degree EB-2A Advanced Degree preference category description : “The job you apply for must require an advanced degree and you must possess such a degree or its foreign equivalent (a baccalaureate or foreign equivalent degree plus 5 years of postbaccalaureate, progressive work experience in the field). You must meet any other requirements specified on the labor certification as applicable.” Ideal for faculty and researchers with advanced degrees, but not yet at the level of professional recognition and accomplishment that would allow for permanent residence under 1st preference categories EB-2A requires a permanent, full-time job offer PLUS a PERM Labor Certification

EB-2 Sponsorship Process 1. Department and Dean (or VP) Approval to offer sponsorship 2. International Center referral of case to immigration attorney 3. Attorney review and assessment of job description, employee qualifications, recruitment history, and other details 4. 5. 6. Attorney prepares and files PERM Labor Certification on behalf of University a) (Recruitment / Advertising for Labor Market Test, if necessary) b) Prevailing Wage Determination c) PERM Labor Certification Filing Attorney prepares and files Form I-140 Immigrant Visa petition on behalf of University Attorney prepares and files Form I-485 Application to Adjust to Permanent Resident on behalf of employee a) USCIS Interview b) Approval

Sponsorship with PERM Labor Certification 12-18 Months (Est.) 6-8 Months (Est.) EMPLOYER Responsibility Recruitment or Re-Recruitment Evidence that employee was recruited or rerecruited under US Department of Labor guidelines Prevailing Wage Determination Dept. of Labor determination of prevailing wage for position PERM Labor Certification Dept. of Labor approval of PERM Labor Certification for position EMPLOYEE Form I-140 Immigrant Petition for Worker Employer application for immigrant visa number under an EB preference category, e.g., EB2A Form I-485 Adjustment of Status Application Employee’s application to adjust to permanent resident status

What is a PERM Labor Certification? The PERM Labor Certification is the critical first filing in the sponsorship process in the EB-2A Advanced Degree process It is a certification by the Department of Labor to the Department of Homeland Security (USCIS) that “there are not sufficient US workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that the employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed US workers.” Involves lengthy preparatory steps taking 6 months and is often the most complex part of the EB-2A process

PERM Labor Certification Tufts must show that there were no sufficient US workers willing, able, qualified for the job opportunity in the area of intended employment and that hiring the foreign national will not adversely affect wages and working conditions of US workers No minimally qualified US workers was there an appropriate, competitive recruitment that showed there were no minimally qualified US workers? Will not adversely affect US workers will the foreign employee be paid at least the “prevailing wage” for the occupation? PERM process requires stringent job advertisement and recruitment requirements

PERM Special Handling for College Teachers HOWEVER: there is a “SPECIAL HANDLING” (or “special recruitment”) standard under PERM for college / university teachers (positions must require classroom teaching) Instead of “no minimally qualified” US workers allowed to use a “best” or “most qualified” standard in selecting a foreign national employee Trade-offs: Must submit a PERM Labor Certification to Department of Labor within 18 months after the recruitment concludes and the employee accepts offer (not start of employment) Prep work takes 6 months, so effectively preparation must begin within first year after employee accepts offer from Tufts Otherwise, department may be required to conduct a “labor market test” or rerecruitment

Labor Market Test under Special Handling If employer did not conduct a competitive recruitment and/or does not meet the 18-month filing window for a special handling PERM labor certification, the employer must conduct a labor market test or “re-recruitment” to determine if employee is still the “best qualified” This requires placement of job ad(s) and evaluating the foreign national candidate in relation to responses to the ads For faculty positions with teaching duties, special handling requires: Minimum of one 30-day ad in a national journal (print or electronic) Evaluation must be made as to whether the foreign national employee is the best qualified versus other applicants If another applicant is found to be more qualified than the foreign employee, then the labor market test must be brought to a close – no obligation to make an actual offer

Labor Market Test: Managed by Attorney IMPORTANT to clarify that the labor market test, if required, is managed directly between the department and the immigration attorney – this process does not go through standard recruitments managed through Human Resources The attorney will determine if a labor market test is needed and work with the department manager and chair to craft a position description and place the ad in an appropriate journal

Best Practice Recommendation To avoid the need for a labor market test under PERM special handling guidelines, the International Center recommends that schools initiate sponsorship for tenure-track / permanent faculty with teaching duties upon acceptance of Tufts’s offer employment or as a part of the onboarding process This will increase the likelihood that the University can initiate sponsorship and file a PERM labor certification within the 18-month window following acceptance of the offer

Prevailing Wage Once recruitment or re-recruitment is finalized, the employer must obtain a prevailing wage determination (PWD) from the US Dept of Labor (DOL) This is a determination of the minimum required wage for the position, given the job duties, occupational category, and intended area of employment The PWD can take almost 5-6 months to come back from DOL Once the PWD is returned to the employer, the employer must agree to pay the PWD once the employee obtains permanent resident status If the PWD wage is higher than expected wage, the employer can appeal the PWD, refile a new PWD (restart the process), withdraw the offer of permanent resident sponsorship, or increase the offered wage to the PWD

Prevailing Wage Example An employee is currently compensated at 100,000 / year The Department of Labor returns a prevailing wage determination of 115,000 / year This is the wage that must be offered the employee upon approval of the permanent residence petition, which may take place within 12-18 months (on average) into the future Should the department: Refile and try to get a new wage determination? Appeal the prevailing wage determination? Commit to offering the prevailing wage once the LPR is approved? Withdraw offer of sponsorship? Complex decisions that will involve discussions with attorney, Dean, department, and others

PERM Labor Certification Once a qualifying recruitment has taken place, and the prevailing wage determination has been made and accepted, the University can file a PERM Labor Certification with the Department of Labor The PERM Labor Certification is reviewed by the Dept of Labor and can take several months for approval Timelines, and cost / complexity, can expand greatly if the Labor Certification is selected for a Department of Labor audit Once the PERM is submitted to DOL, this establishes a “priority date” for the employee the Priority Date “starts the clock” on the permanent resident process for the employee

Step 2: Form I-140 Once the PERM is approved, the University can then file a Form I-140 Immigrant Petition for Alien Worker to the US Citizenship and Immigration Services (USCIS) The I-140 is essentially a request for one of a limited number of immigrant visas available under the employment-based preference category (e.g., EB-2A) The I-140 processing time can be many months (under standard processing) to fifteen days (under premium processing, currently an additional 2,500)

Step 3: Form I-485 Application to Adjust to Permanent Resident Form I-485 is an application submitted by the employee to the US Citizenship and Immigration Services requesting an “adjustment” to immigrant status Form I-485 can be submitted to USCIS at same time as Form I-140 for most; but citizens of certain countries (e.g., India, China) must wait due to backlog in # of visa applications from those countries Can also apply for temporary work authorization, travel authorization at the same time as Form I-485 Alternative to Form I-485: Consular Processing (employee is outside the US and will apply for an immigrant visa at a US consulate) – rare for most Tufts employees

'Green Card’ Arrival Once I-485 is approved, employee will receive approval notice with actual ‘green card’ following shortly thereafter Employee should provide copy of I-485 approval to International Center and update I-9 Employment Verification form with TSS upon receipt of approval notice or card Employee is now permanent resident! This Photo by Unknown Author is licensed under CC BY

Estimated Costs

Estimated Fees The permanent residence sponsorship process can involve significant financial expense Overall costs can run in the 10,000 range, on average Attorney fees are based on an approved schedule, but can change depending on case specifics and contingencies, including federal audits Periodic government fee increases may affect overall costs Certain fees are the legal responsibility of the school and others the employee - each school is encouraged to develop its own cost-share policy

Fees and Costs: Responsibility P R I M A RY E X P E N S E CO M P O N E N TS P E R M L A B O R C E RT IF I C AT I O N , I N C LU D I N G R EC R U I T M E N T CO S TS FORM I-140 FORM I-485 Advertising Costs EMPLOYER N/A N/A Attorney Fees EMPLOYER EMPLOYER* EMPLOYEE** Govt Filing Fees N/A EMPLOYER* EMPLOYEE** Dependent Visas N/A N/A EMPLOYEE EMPLOYER VARIES EMPLOYEE Incidentals * ** Employer usually pays, but is not required to Employee pays; if employer reimburses, then contribution might be considered a taxable benefit

Sample Schedule (Based on 2021 Fees / Costs) PERM Labor Certification 500 Advertising Costs 2,750 Attorney Fees Form I-140 2,000 Attorney Fees 700 Filing Fees 2,500 (optional) Premium Processing Fees Form I-485 2,000 Attorney Fees 1,225 Filing Fees (including biometrics)

Complicating Factors Sponsorship costs can go up, and processes can be delayed, due to extenuating circumstances Selection of case for Department of Labor audit Slowdowns in government processing Government fee changes and increases Regulatory changes / developments Requests for additional evidence Other contingencies

Dependents An employee sponsored by Tufts may have dependent family members eligible for inclusion in the permanent residence process Under University policy, legal and financial responsibility for the immigration status of dependents rests on the individual employee The employee should consult with the attorney facilitating their adjustment to permanent residence status

Resources and Q&A

International Center Resources & Contacts Permanent Residence Questions for A&S (including SMFA), SOE, Fletcher, Cummings Contact Andrew Shiotani at [email protected] Permanent Residence Questions for Central Administration, Boston Health Sciences Contact Ghenwa Hakim at [email protected]

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