Employment of Foreign Nationals
Op7.08 Employment of Foreign Nationals
Missouri State University will process visa petitions and applications on behalf of foreign nationals in order to further academic goals of the university. Employment of foreign nationals will depend upon their work eligibility per U.S. Citizenship and Immigration Services (USCIS) regulations and payment will depend upon their eligible work visas and international tax laws per Internal Revenue Service (IRS) regulations. All foreign nationals will be hired on a "limited term" basis based upon the time period of their work eligibility.
It is the University's policy, therefore, to process visa petitions and applications for students, academic positions, and research positions only. Temporary worker visas will be considered for staff/classified positions if a compelling argument can be made that the individual is vital to the needs of the university. College degrees will be required for all positions (except students). Terminal degrees will be required for academic positions, and research positions will be considered on an individual basis since most of these will participate in the exchange program and stay a short period of time.
Out of the many available visa classifications the university will deal principally with the following (5) categories:
F-1 Student Visa
F-1 student visas are processed and administrated in the International Services office.
F-1 students are eligible to work on campus and off campus in accordance with certain USCIS regulations. Only students enrolled at Missouri State University will be allowed to work for the university except for those in the following two categories.
- Optional Practical Training - processed by the school of attendance and approved by USCIS. This category is typically used by students who have graduated. The maximum amount of time in the status is only one year. The individual must have an Employment Authorization Card to show work eligibility.
- Curricular Practical Training - processed by the school of attendance. This category is primarily used by students who are still in school and working an internship as part of their degree usually for credit. Their I-20 USCIS document should be endorsed by the school' s Designated School Official (DSO) to show work eligibility.
J-1 Exchange Visitor Visa
J-1 exchange visitor visas are mandated by the US State Department and are issued by USCIS.
Students - processed and administered by the International Services office.
J-1students are eligible to work on campus in accordance with certain USCIS regulations. Only students enrolled at Missouri State University will be allowed to work for the university except for those in the following category:
- Academic Training - processed by the school of attendance. This category is typically used by students who have graduated. They should have a DS-2019 document and should be endorsed by the school' s DSO to show work eligibility in the academic training program. The maximum time allowed in this status is 18 months or 36 months for post-doctoral.
- Research scholars and visiting professors - processed by the Office for Institutional Equity and Compliance. This category will be used primarily for limited-term faculty. It will be for short-term, temporary positions only. Individuals in this category cannot be hired in a tenure-track or full-time position. The maximum time period for research scholars and visiting professors is 3 years. If more time is necessary to complete a specific project or research activity, extensions up to 6 months may be granted. No other extensions will be granted. Research scholars should have at least a Bachelor’s degree.
H-1B visas are processed by the Office for Institutional Equity and Compliance and issued through the USCIS to "temporary workers of distinguished merit and ability." This visa petition will be used for academic positions and petitioned for a time frame of three years or less. The total maximum time in this status is 6 years. Petitions in this status can be for new employment, extensions and transfers from other employers.
This petition process is complex and lengthy. The university must prove they will pay at least the prevailing wage and file a Labor Condition Application with the Department of Labor prior to filing the petition to USCIS. The entire process can take several months and the person on whose behalf the petition is being submitted, can NOT be employed until the petition has been approved.
TN - Trade NAFTA (North American Free Trade Agreement)
TN - Trade NAFTAs are processed by Payroll and issued through USCIS at the border. This visa classification is for academic positions only based on the Professions list per NAFTA. TN status is granted for 1 year and can be extended in 1 year increments without limitation on total time in the United States, assuming the terms of the TN continue to be met to the satisfaction of USCIS. A bachelor' s degree is required. A letter from the hiring department and payroll is also required. It should provide details of the duties and show evidence of the terms of employment.
B1 or VWB (Business Visitor or Waiver Business) - B2 or VWT (Tourist Visitor or Waiver Tourist)
Visitor visas are issued by the American Embassy or Consulate with jurisdiction over the foreign national’s place of permanent residence. Generally independent contractors (e.g. guest speakers, presenters or performers) will fall in this category.
- B-1 or VWB - An independent contractor in this category can accept honorarium only if 1) the activity does not last longer than 9 days at any single institution and if 2) he/she has not accepted payment from more than 5 institutions in the previous 6-month period (9/5/6 rule). The independent contractor in this category can also accept reimbursed travel expenses and per diem without having to meet the above honorarium limitations.
- B-2 or VWT - An independent contractor in this category can accept honorarium and reimbursement of expenses only if he/she meets the 9/5/6 rule as outlined above under B-1 or VWB.
It is recommended that prospective independent contractors be invited to the university as B-1 or VWB business visitor visa.
This is per the amended section 212 of the Immigration Nationality Act (INA) which was amended by the American Competitiveness and Workforce Improvement Act (ACWIA).
The regulations for these visa categories are somewhat complex and burdensome, particularly for the H-1B visas. Since failure to meet the intent and the requirements of these visa categories could result in fines, back pay and/or a prohibition against sponsoring foreign nationals for at least a year, the university must exercise extreme care in processing visa petitions.
Permanent Residency "Green Card"
The university will only petition for an individual' s permanent residency at the discretion of the department head and Academic Affairs. It is recommended that this decision not be made until the foreign national becomes eligible for tenure.
Due to the complexity of immigration law, this petition will not be processed by the university. It should be recommended that the foreign national seek legal counsel for this type of petition.
Equal Opportunity and Hiring Issues
Employment at the university will focus on applicants' qualifications and their legal right to work in the United States and not their citizenship or residency status. It is legal to ask in the interview process whether the individual may legally be eligible to work in the United States. Unless the individual indicates willingness to further discuss their citizenship status, the interviewer may not ask them further questions until the time of offer. At the time of offer, the hiring authority may discuss possible visa classifications.
The hiring departments are responsible for compliance with the Immigration Laws when hiring foreign nationals. If the foreign national cannot provide or obtain legal work eligibility, the department CANNOT hire the individual.
The office for Office for Institutional Equity and Compliance should be notified immediately to discuss the possible visa petitions when the decision has been made to make an offer to a foreign national. Due to the timing and difficulties in obtaining certain visa classifications, an offer should not be made until this has been discussed with the Office for Institutional Equity and Compliance. It is permissible to make an offer to an American citizen in the event there are problems in obtaining the appropriate visa classification for the foreign national.
Appointment letters to foreign nationals shall include the statement that their employment is contingent upon their immigration status.
Financial Responsibility and Legal Counsel
Each department will be responsible for USCIS petition fees when the petition is an employer-based petition. This includes H1B visa classifications and permanent residency/green card petitions.
Based on the requirement of the H1B visa petition each department will be responsible for the reasonable costs of return transportation of the foreign national abroad if they are dismissed from employment prior to the end of the period of authorized stay.
H1B visa classifications are processed by the Office for Institutional Equity and Compliance. However, some instances may require legal counsel. In these instances, the hiring departments will be responsible for the legal fees. This determination is based on the fact that H1B petitions are petitioned by the employer and the individual is the beneficiary and legal counsel, therefore, becomes a dual representation situation. In addition, this visa classification is employer specific. Legal fees will not be paid by the university unless approved in advance by the Vice President for Academic Affairs. The university may require that legal services be provided by General Counsel or the university's retained immigration law firm.
Legal fees for permanent residency will be the responsibility of the individual unless previously discussed and approved by the department and the Vice President for Academic Affairs of the university. Although, permanent residency petitions by the university are employer based petitions, the university will not be responsible for legal fees based on the "intent" of the permanent residency classification. Unlike the temporary worker visa (H1B) which is a temporary and employer specific status, the foreign national who receives permanent residency is no longer obligated to remain in the employment of the university.
Fees for all other classifications (e.g. TN status or J1 visas) and petitions will be the responsibility of the individual.