Provost & Academic Vice President
U.S. Employment Immigration Overview
The usual process to gain permanent residency (a green card) through an employer is a three step process, comprised of three separate and individual applications made with the U.S. Department of Labor and U.S. Citizenship and Immigration Services. Universities and colleges have advantages in the process.
Step One: Labor Certification
The first step in this process is a Labor Certification through the U.S. Department of Labor – this process is now called “PERM.” Before this process can being, it must be determined whether the nonimmigrant employee in question will be engaged in any teaching within the college or university.
Persons engaged in teaching are eligible for a streamlined process called “Special Handling” when undertaken for Colleges and Universities. The college or university seeking the permanent employment services of the foreign faculty would need to undertake a competitive recruitment for the position on a permanent basis (most likely this would already have taken place prior to the employment of the faculty member). Under the Immigration and Nationality Act, applicants for college and university teacher positions must be more qualified than the alien on whose behalf certification is being sought, in order to be considered “available.” Therefore, in order to proceed with a PERM case the foreign faculty member must be found to be the “most qualified” candidate after the competitive recruitment is complete. This step of the process requires at least one print ad in a national professional journal.
In cases for persons with no teaching responsibilities, the requirements and nature of the PERM process are far different. In these cases (e.g., for a software analyst, librarian, or other nonteaching position), there are different rules that govern the amount and the type of recruitment efforts required by the employer. The employer cannot secure certification for the foreign worker for the position from the U.S. Department of Labor unless it demonstrates that there were no qualified, willing, able or available U.S. workers meeting the minimum requirements for the position following certain recruitment efforts mandated by the regulations. Here, the required recruitment is more extensive and specific.
Step Two: Immigrant Petition
Once a PERM case is approved, the second step of the three step process involves the filing by the employer of an immigrant petition on the sponsored employee's behalf through the U.S. Citizenship and Immigration Service. This petition, sponsored by the college or university employer allows the employee to apply for permanent immigration to the U.S. based on said approved Labor certification and “permanent” job offer. In this step, the employer submits Form I-140 with the approved labor certification as well as the proof that the employee met the requirements of the position stated within the PERM case at the time it was filed. The employer must also document its ability to pay the proffered wage to the employee beginning from the date the PERM case was filed up until the present time.
Step Three: Application for Permanent Residence/Green Card
The actual green card application (application for adjustment of status) is the last step of the three-step process. This application is filed by the employee and separate applications are filed by any qualified dependents (spouse and children) with the U.S. Citizenship and Immigration Service. The actual green card application might be able to be filed at the same time as the Immigrant Petition, or might not, depending on several factors at the time of filing including the country of birth of the principal applicant or the spouse of the applicant. When this step is approved the case is complete and the applicant(s) receives permanent resident status in this country.
(Information above excerpted from Understanding the Immigration Process)
Attorney Eligibility to Represent WIU Employees in the Green Card Process
WIU no longer permits outside attorneys to handle the matters of immigration and labor certification described below. Recent legislation and past experience have made it clear that the University must be able to exercise institutional control over documents filed in its name. The University relies on WIU Administration, University Legal Counsel, and legal counsel that are under contract to provide immigration-related services on behalf of the University, as well as close cooperation among our foreign students, faculty and staff.
Accordingly, outside attorneys who are not under contract with the University are not permitted to: (1) sign a G-28, Notice of Entry of Appearance as Attorney or Representative, on behalf of WIU; (2) file I-129, Petition for a Nonimmigrant Worker, for WIU employees; and (3) file Form I-140, Immigrant Petition for Alien Worker on which WIU is shown as the petitioner. Even if an outside attorney who is not under contract with the University has represented you in the past by filing an H-1B petition, he/she will not be permitted to file an application for labor certification or an I-140 petition on behalf of the University for the reasons set forth above.
The University does not and will not prohibit an employee from seeking outside legal counsel. While employees are free to seek your own legal counsel, they cannot retain an attorney's services for the purpose of filing in the University's name the petitions outlined above. However, an outside attorney can sign Form G-28 if the petition is in an employee's name. “Western Illinois University” may not be listed as a petitioner nor may its IRS tax number appear in such a petition.
The University reserves the right to interpret the nature of employment it offers to individuals within the context of labor, immigration and other statutes. Please keep in mind that in most instances an application for permanent residence that is filed on behalf of a tenure-track faculty member must be initiated within fourteen (14) months of the date of the initial offer letter. It is the faculty member's responsibility to keep this time frame in mind and to ensure that no applicable filing deadlines are missed.
Any questions or additional information concerning the Western Illinois University guidelines in this regard should be directed to K-Neumann@wiu.edu , by phone at (309)298-1066 or by mail at the Provost's Office, Sherman Hall 211, 1 University Circle, Macomb, IL 61455.