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The University of Texas Rio Grande Valley Operating Procedure
January 2, 2017
1
Operating Procedure Alberto Castillo
Immigration Services Manager
Page:
1 of 23
HIRING OF TEMPORARY NON-IMMIGRANT WORKERS
CONTENTS
I. Statement;
II. Purpose;
III. Visas Sponsored by UTRGV and Individuals Eligible;
IV. Compliance with the Immigration and Nationality Act (INA);
V. Positions That Will be considered for Sponsorship;
VI. Responsibilities and Process for Obtaining Approval for UTRGV H-1B Sponsorship; VII. Maintenance of Ongoing Compliance with State and Federal Laws Related to H1B Employees;
VIII. Rest of Visa Options and Employment Authorizations;
IX. Related Statues, Polices, Requirements or Standards;
X. Other Related Resources and Guidelines;
XI. Forms;
XII. Contact Information;
XIII. Disclaimer; and
XIV. Operating Procedure Review.
I. Statement
Foreign Nationals make many valuable contributions to the teaching and research mission of
The University of Texas Rio Grande Valley (UTRGV). Therefore, it is important that hiring
departments are aware of the University policy and operating procedure for the filing and
sponsorship of temporary nonimmigrant worker visas, known as the H1-B. A general
overview of the operating procedure for filing and sponsoring a foreign national for
employment petitions at UTRGV is provided below. In addition to the university operations
and processes regarding such sponsorship, included is general information about other
employment authorization and visa options at UTRGV.
II. Purpose
The purpose of this operating procedure is to:
A. Identify those positions for which The University of Texas Rio Grande Valley will
consider for Visa sponsorship.
The University of Texas Rio Grande Valley Operating Procedure
January 2, 2017
2
B. Establish the operating procedure for requesting, obtaining approval for, and processing
an immigration petition, as well as provide forms for departments and foreign nationals to
utilize in relation to the process.
C. Establish immigration operating procedure in compliance with state and federal laws as
well as related institutional policies.
III. Visas Sponsored by UTRGV and Individuals Eligible
a. H1B
b. O1
c. TN
d. E3
e. J1
f. B1
g. VWP
h. EAD Cards
This procedure applies to all staff and faculty that require sponsorship for a temporary non-
immigrant worker status with UTRGV and the sponsoring departments who hire them.
IV. Compliance with the Immigration and Nationality Act (INA)
To comply with the provisions of the Title 8 of Code of Federal Regulations (8 CFR) and
Immigration and Nationality Act (INA), The University of Texas Rio Grande Valley (UTRGV)
will only employ individuals who are federally authorized to work in the United States. All
petitions for temporary employment must directly support the teaching and research mission of
UTRGV and comply with the rules and regulations of the Department of Labor (DOL),
Department of Homeland Security (DHS), and Department of State (DOS).
V. Positions That will be Considered for H-1B Sponsorship
The majority of positions which the University will fill with foreign nationals fall into the H-1B
"specialty occupation" category, which is the focus of this procedure.
A. Specialty Occupations
An H-1B visa is available for a "person in a specialty occupation" who is coming
temporarily to the U.S. "A specialty occupation" for H-1B purposes is an occupation that
requires:
The University of Texas Rio Grande Valley Operating Procedure
January 2, 2017
3
1. Theoretical and practical application of a body of highly specialized knowledge,
2. Attainment of a bachelor's or higher degree in the specific specialty (or its equivalent)
as a minimum for entry into the occupation in the United States.
B. The University will not sponsor individuals for an H-1B visa if the position does not require
a minimum of a bachelor's degree (equivalent experience is not acceptable for the purposes
of University sponsorship) and satisfy the above requirements for a "specialty occupation."
A foreign national's qualifications are irrelevant when evaluating whether a position
qualifies as a "specialty occupation."
C. Please note that the general rule is that the individual CANNOT begin to work until the H-
1B petition is approved, as evidenced by a hard-copy of the H-1B approval notice. An e-
mail notification of approval is not sufficient evidence to permit the foreign national to
begin work. Filing of the petition does not authorize a foreign national to begin
employment. There are certain exceptions to this rule available for those extending H-1B
status or those changing employers, which are addressed below. Otherwise, departments
MUST NOT permit a foreign national to begin employment until the H-1B petition has
been approved and received by the Human Resources Immigration Services Manager.
*Note - Employment Eligibility Verification (Form I-9): Newly hired employees must fill out
section 1 of Form I-9 on the first day of work. Human Resources completes section 2 of Form I-
9 within three (3) business days of the employee’s first day of employment, and completes E-
Verify as required. The employee must present original documents from the List of Acceptable
Documents as they appear on the current I-9 form. Documents must be updated prior to
expiration in order for the employee to continue working at UTRGV.
*Note - The University of Texas Rio Grande Valley (UTRGV) is an E-Verify employer. E-Verify
is an Internet-based system that compares information from an employee's Form I-9,
Employment Eligibility Verification, to data from U.S. Department of Homeland Security and
Social Security Administration records to confirm employment eligibility. All new UTRGV
employees will have to go through the E-Verify system.
D. Part-time H-1Bs
Part-time H-1Bs are discouraged and not permitted under UTRGV operating procedure. The
Department of Labor requires a strict record-keeping of all part time hours worked, and this
makes these H-1Bs much harder to keep up with in terms of compliance. Please consult
with the Human Resources Immigration Services Manager to discuss exceptions to this
operating procedure. Cases that merit further discussion will be referred to the Director of
Human Resources, the Chief Human Resources Officer, and the Provost's Office.
E. Changes of Status to H-1B
For individuals already in the U.S. in another immigration status (i.e. F-1/OPT, J-1, O-1,
TN, H4, etc…), the individual must still petition for H-1B status. In order to change status
The University of Texas Rio Grande Valley Operating Procedure
January 2, 2017
4
within the U.S., a nonimmigrant must be maintaining their current status. The University
will not sponsor an individual for H-1B status who has not properly maintained legal status
in the U.S.
F. Important Note Regarding J-1/J-2 Immigration Status
If the nonimmigrant is in J status and is subject to the 212(e) 2-year home residence
requirement (or ever was in the past), he/she cannot change to H-1B status until this
requirement is either fulfilled or waived. If waived by the Department of State, an official
waiver letter must accompany the petition when the case is sent to USCIS. Please contact
the Human Resources Immigration Services Manager for more information.
G. Non-Transferability of H-1B Status
H-1B work authorization is employer specific. The H-1B status which has been obtained on
behalf of an employee may not be used by any other employer. An additional H-1B would
need to be approved for a second employer. While a person may hold more than one H-1B
classification, he/she is only permitted to work for the approved employer(s). There is a
portability provision which allows a current H-1B worker, who is changing employment to
the University of Texas Rio Grande Valley and thus filing a new H-1B petition, to begin
working here as soon as confirmation is received that USCIS has received the petition,
rather than waiting for the new petition to be approved.
H. Extensions of H-1B Status
H-1B extension operating procedure is basically the same as the initial H-1B. Therefore, the
initiation form and entire procedure must again be completed by the department and the
employee, and submitted to the Human Resources Immigration Services Manager with all
supporting documentation. It is important to request the extension as soon as possible (if
possible 6 months before expiration of status). H-1B extensions fall under a special "240-
day rule": "An H-1B alien for whom the employer has filed a timely application for an
extension of H1B stay can continue employment for the same employer while the request for
extension of stay is pending with USCIS, for a period of up to 240 days beyond the
expiration of the prior period of authorized stay." This rule only applies when the H-1B
extension petition has been filed before the current H-1B visa status expires- if the petition
is not timely filed, the individual cannot continue to work beyond the expiration of his/her
current visa status.
I. Length of H-1B Visa
1. H-1B status may be requested for an initial period of stay up to 3 years. The length of
the H-1B visa is a decision made by the employing department. The University
encourages departments to request 3 years if funding is available, to avoid having to
undergo the extension process, which incurs additional fees. However, the Human
Resources Immigration Services Manager will only request the H-1B visa for the
duration of the position as indicated by the Employing Department. Department have
to indicate exactly the first day of work of the employees.
The University of Texas Rio Grande Valley Operating Procedure
January 2, 2017
5
2. Beyond the initial 3 year period, extensions of H-1B visas are available for up to
another 3 year increment; the cumulative duration of an H-1B classification is 6 years.
Unless the individual is subject to other circumstances (such as pending green card
petition/adjustment of status to a permanent resident), the H-1B visa cannot be
extended beyond 6 years. If the 6 years have been used, the individual must remain
outside the U.S. for a period of one year before the H-1B six-year clock can begin
again.
J. Fees
1. The employing department is responsible for all fees associated with the H-1B petition.
The maximum potential fees which may be incurred for an H-1B petition are $2,185.
$460 filing fee for the H-1B petition itself, the I-129 petition for a Nonimmigrant
Worker.
$500 USCIS government fraud prevention and detection fee required for each
new H-1B petition (not required for a petition extending H-1B status with the
same employer).
Miscellaneous mailing fees- FedEx, UPS, certified mail, etc.
I-907 Request for Premium Processing Service - $1,225 potential premium
processing fee- depending on the timing of the petition, it may be necessary to
fast-track the petition with the premium processing option. It is strongly urged
that the department pursue premium processing of an H-1B petition if it has been
filed regular processing, and the new foreign employee has not received his/her
approval notice at three weeks prior to the requested employment start date.
*Note - Premium Processing Fee: The fee may be paid by the employee only if it is the personal
request of the employee and unrelated to employment needs. Additionally it must be
demonstrated that paying the fee will not put the employee annual income below the DOL
prevailing wage.
2. Miscellaneous
Any costs associated with the filing of H-4 dependent petitions (I-539 - $370)
should be paid by the beneficiary or the department; the University has no
obligation for these fees.
I-102 ($445) is the application for replacement/initial nonimmigrant arrival
departure document and needs to be paid by the employee who lost the document.
Miscellaneous overseas consular processing fees- if the foreign national is abroad,
he or she will need to pay an additional filing fees to the U.S. Consulate. DS -160
applications and DOS visa reciprocity fees (non-petition $160, with petition $190,
and reciprocity fees depending on the nationality of the visa applicant)
The University of Texas Rio Grande Valley Operating Procedure
January 2, 2017
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K. Paying Return Transportation of Alien
If the employee is dismissed before the end of the authorized period of H-1B employment,
the sponsoring department will be responsible for paying the reasonable costs of return
transportation to the employee's last permanent residency outside the Unites States. This is
required by USCIS regulations, to ensure that the foreign national will not be stranded in the
U.S. without being able to return to his/her last place of residency or home country.
VI. Responsibilities and Process for Obtaining Approval for The University
of Texas Rio Grande Valley H-1B Sponsorship
A. Initiation by the Employing Department and Review of the Request
1. The employing department seeking to sponsor the foreign national must submit, UTRGV
H-1B Request Packet signed by the Chairman and the Dean. The foreign national
employee may not initiate the request. The UTRGV H-1B Request Packet is then
submitted to The Office of Human Resources, for the Immigration Services Manager
review. The Immigration Services Manager will notify the department if the request for
sponsorship will be denied and will explain the denial. If the department disagrees with
the denial, it may appeal the decision to the Director of Human Resources, the Chief
Human Resources Officer and/or the Provost. If the request is approved, the Immigration
Services Manager will begin the H-1B petition process.
2. The Immigration Services Manager will also require the H-1B beneficiary (foreign
national employee) to complete, The Foreign National Application Checklist.
B. Preparation of the Petition by the Immigration Services Manager at the Office of
Human Resources
1. The Immigration Services Manager will request that the employing department and the
foreign national provide certain documents necessary for the H-1B petition and legal
compliance. Departments should print all documents on The University of Texas Rio
Grande Valley departmental letterhead. As the information reflected in all documents
must be consistent, it is possible that departments will be requested to revise/update these
forms.
2. Once the necessary information is received, the Immigration Services Manager will need
to file a prevailing wage application with the Department of Labor (DOL) to demonstrate
that the H-1B employee is being paid the “actual wage” or “prevailing wage” whichever
is higher. This procedure alone can take over 90 days to complete. The actual wage is the
amount being paid to faculty or staff employed by UTRGV with similar experience and
qualifications for that specific position in the particular department, laboratory, or center.
The prevailing wage is the salary rate being paid in academic institutions in a particular
metropolitan statistical area for the same occupation. If the employee’s salary is below
The University of Texas Rio Grande Valley Operating Procedure
January 2, 2017
7
the DOL prevailing wage (or actual wage whichever is higher) the employee cannot
continue with the H-1B application and the Immigration Services Manger will need to
notify the department of this and will discuss other options. Finally it is important to note
that prevailing wages can change significantly year-to-year, and new DOL data are
released annually on July 1st.
*Best Practice Note: By obtaining the prevailing wage from the NPWC, H-1B, and E-3 we
are given “safe-harbor status,” meaning that if UTRGV wage compliance is investigated
for any reason, the Wage and Hour Division of the Department of Labor will not
challenge the validity of the prevailing wage as long as it was applied properly (i.e., correct
geographic area, occupation, and skill level.
Although the Department of Labor regulations governing the LCA process do not require an
employer to use any specific wage methodology to determine the prevailing wage, they do
require that the prevailing wage be based on the best information available at the time the
employer files an application. Filing and LCA may, but is not required to, request a
prevailing wage determination (PWD) from the OFLC’s National Prevailing Wage Center
(NPWC) by U.S. mail or through the iCERT Portal System. In the absence of a PWD issued
by the NPWC, we may consider the following wage sources in determining the prevailing
wage:
1. A wage rate set forth in a collective bargaining agreement (CBA), or
2. If the job opportunity is in an occupation which is not covered by a CBA: A wage rate
for the occupation and area of intended employment under the Davis-Bacon Act (DBA);
3. A wage rate for the occupation and area of intended employment issued under the
McNamara-O'Hara Service Contract Act (SCA);
4. A wage rate produced by a survey conducted by an independent authoritative source that
meets the requirements set forth in 20 CFR 655.731; or
5. A wage rate produced by another legitimate source of information, including the Bureau
of Labor Statistics Occupational Employment Statistics Survey (OES) data available
through the iCERT Portal System and the FLC Data Center.
C. Postings by Employing Department and Department of Human Resources
Once the DOL Prevailing Wage has been determined the Immigration Services Manager
will create a posting notifying employees that the University is filing the LCA on Form
ETA-9035, which will be provided to the Department of Human Resources and the
employing department. Both departments will post this notice in an area of sufficient
visibility for other employees. The employing department must ensure that this notice is
posted in the actual work area in which the foreign national will be performing his/her
job duties. It is the responsibility of the employing department to inform the Immigration
Services Manager of all physical work sites of the foreign national. These notices must be
posted for 10 consecutive calendar days, after which it must be signed and dated by a
department administrator, and the original must be returned to the Immigration Services
Manager, who will keep track of the 10 consecutive calendar days.
The University of Texas Rio Grande Valley Operating Procedure
January 2, 2017
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D. Approval of the Labor Conditions Application (LCA) by the Department of Labor
Following the posting of the notice, the Immigration Services Manager will file the LCA
on Form ETA-9035 and upon certification (approximately in 7 business days) will sign
the LCA and provide one copy to the H-1B worker. The Immigration Services Manager
will then confirm that all of the required documents have been collected for the H-1B
petition and will prepare the petition to be filed with the U.S. Citizenship and
Immigration Services.
E. Payment of Fees by the Employing Department and Beneficiary
The employing department will request that checks for all of the required filing costs be
provided to the Immigration Services Manager at the office of Human Resources. All
filing fee checks are to be separate checks made payable to U.S. Department of
Homeland Security. The Immigration Services Manager will also provide departments
with additional fees (arraigning any certified mail/courier services) and instructions. The
employing department will also assist in ensuring that any fees that will be paid by the
foreign national beneficiary (H4 - Dependents) are provided to the Immigration Services
Manager to be sent with the nonimmigrant worker petition.
F. Submission of the H-1B Petition to USCIS by the Immigration Services Manager at
Human Resources
1. The Immigration Services Manager at Human Resources will review the entire
sponsoring petition, along with the USCIS Forms I-129 and sign these forms. After the
petition has been signed, the Immigration Services Manager will submit the H-1B
petition, approved LCA and other evidentiary documents to the designated USCIS
Immigration Service Center for adjudication. There is no way to accurately approximate
the time it will take for H-1B approval. In addition, if the H-1B beneficiary is not in the
United States, this significantly increases processing times. Generally, it takes six to eight
months for the petition to be approved if it is a change of status to H-1B. If the individual
has an H-1B through another employer and he is "porting" the H-1B to UTRGV, it could
take up to 8 months for approval. In the latter case, as well as an H-1B extension,
however, the individual is eligible to work at UTRGV while the case of portability is
pending at the Immigration Service Center.
2. If the foreign national beneficiary has dependents for which he/she will be applying for
H-4 status, it is recommended that this application be submitted along with the I-129
petition. The University it’s not responsible for paying the filing fee, it will mail all of the
petition materials in together. Please notify the Immigration Services Manager at the
beginning of the H-1B process if the H-1B beneficiary has dependents.
*Note - If the beneficiary is not in the U.S. (Immigration Services Manager needs to send a
duplicate petition to USCIS) a notification of an approved petition is sent directly from USCIS to
the U.S. Embassy or U.S. Consulate where the beneficiary will be requesting the H-1B visa
stamp. An original H-1B approval notice (USCIS Form I-797) will be sent to the Office of
Human Resources. The Immigration Services Manager at Human Resources will mail the
The University of Texas Rio Grande Valley Operating Procedure
January 2, 2017
9
original H-1B approval notice along with a copy of the approved H-1B petition plus evidentiary
materials to the beneficiary to use when they apply for the H-1B visa stamp.
VII. Maintenance of Ongoing Compliance with State and Federal Laws
Related to H1B Employees
A. Change in H-1B Beneficiary Job Duties, Work Location, or Resignation/Termination
of Employee
The Employing Department is responsible for notifying the Immigration Services Manager
if the H-1B beneficiary's job duties responsibilities change, job title rank change, decrease
in salary/benefits, substantial increase in salary/benefits, promotions, if the location of
employment has changed, or if the H-1B beneficiary resigns/is terminated from his/her
position. The foreign national employee will not be placed on unpaid leave or any type of
non-pay status at any time without the Immigration Services Manager approval. A change
in job duties, job location, resignation, or termination of the H-1B beneficiary creates
certain legal obligations on the part of the University to amend/revise/revoke/withdrawal
USCIS and DOL documentation which was filed pertaining to the H-1B beneficiary's status.
Please note that if the University does not notify the USCIS and/or DOL of changes in an
H-1B employee's status, the University may incur certain monetary liabilities and will
jeopardize UTRGV’s ability to sponsor foreign nationals in the future.
B. Deemed Export Control
All employers seeking H-1B status for employees must answer questions regarding export
control compliance before a new H-1B, O1 or extension application can be filed with the
United States Citizenship and Immigration Service (USCIS). Federal law also requires that
any material change to the employment during the H-1B sponsorship period must be
reported to the Immigration Services Manager at the Human Resources Office immediately
including; salary, appointment title, work location, and Export Control issues. The H-1B
and O-1 instructions list the questions to be answered and outline the Export Control
process. In some cases a second review of the Export Control issue will need to be
conducted by The University of Texas Rio Grande Valley Associate VP for Research in the
office of RESEARCH in charge of International Agreements and Export Control Licensing
before the Immigration Services Manager may proceed with the immigration application.
The Department of Homeland Security USCIS states the following regarding this new
regulation: The Export Administration Regulations (EAR) (15 CFR Parts 770-774) and the
International Traffic in Arms Regulations (IT AR) (22 CFR Parts 120-130) require U.S.
persons to seek and receive authorization from the U.S. Government before releasing to
foreign persons in the United States controlled technology or technical data. Under both the
EAR and the ITAR, release of controlled technology or technical data to foreign persons in
the United States--even by an employer--is deemed to be an export to that person's country
or countries of nationality. A U.S. company must [document that a license is not required,
The University of Texas Rio Grande Valley Operating Procedure
January 2, 2017
10
or] seek and receive a license from the U.S. Government before it releases controlled
technology or technical data to its nonimmigrant workers employed as H-1B, L-I or O-IA
beneficiaries.
Export control regulations are federal laws that prohibit the unlicensed export or potential
export of certain controlled commodities or information for reasons of national security or
protections of trade. Note: Work that will be published or otherwise released to the public is
often exempt under the terms of fundamental research. Export controls usually arise for one
or more of the following reasons:
The nature of the export has actual or potential military applications or economic
protection issues;
Government concerns about the destination country, organization, or individual,
and
Government concerns about the declared or suspected end use or the end user of
the export
In the course of their work researchers at UTRGV may be asked to accept confidential,
proprietary information, materials, software code or technology from a sponsor or third
party. In some cases, non-disclosure requests are embedded in the content of several kinds
of agreements between UTRGV and the sponsor or third-party. Examples of such
institutional agreements include equipment or software purchases or loans, technology
licensing, data sharing agreements, and material transfer agreements. The acceptance of
disclosure-restricted information, equipment, software code or technology may expose the
recipient to "deemed export" compliance risk since such information is not covered by the
fundamental research exclusion.
C. Public Access File and Department of Labor File
1. Per Department of Labor (DOL) regulations, an employer must make certain documents
(copy of the certified LCA; copy of the LCA cover pages; documentation which provides
the wage rate to be paid to the H-1B worker; actual wage system memorandum;
prevailing wage documentation; summary of the benefits offered to U.S. workers in the
same occupational classification as the H-1B worker(s), and if there are differences, a
statement as to how differentiation in benefits is made; Notice of Filing of the LCA,
evidencing that the LCA was physically posted in two conspicuous locations at the
worksite(s) where the H-1B employee will work; and acknowledgment of receipt of the
LCA by the H-1B employee) filed as part of the H-1B petition available for public
examination at the employer's principal place of business in the U.S. or the place of
employment. Public access means that individuals have the right to view these
documents, including the Labor Conditions Applications (LCA). The Immigration
Services Manager will maintain the Public Access File for one year beyond the LCA
period, and any related payroll records for 3 years from the date of creation except if an
enforcement action is commenced, all payroll records shall be retained until enforcement
proceeding is completed. Employing departments should direct any individuals interested
The University of Texas Rio Grande Valley Operating Procedure
January 2, 2017
11
in reviewing these documents to the office of the immigration services manager at
Human Resources.
2. In addition to the Public Access File, the employer is required to maintain and must make
available for the inspection by the DOL other documentation related to the H-1B petition.
These documents are maintained as part of the foreign national employee's immigration
file, which is kept at the Office of Human Resources. Employing Departments should
direct any representatives of the DOL interested in reviewing these documents to the
Immigration Services Manager at Human Resources.
D. The University of Texas Rio Grande Valley (UTRGV) DHS, DOS and other
government agencies audits or on site Compliance Reviews Visits
UTRGV including the Office of Human Resources, or individual host departments may be
subject to audits or on-site compliance reviews pertaining to the sponsorship of
nonimmigrant employees. These audits and on-site inspections may be made by agents or
designates from U.S. Department of Homeland Security (Immigration Customs
Enforcement), U.S. Department of State, or other agencies, as applicable. Any questions
related to audits or compliance visits should be refereed immediately to the Immigration
Services Manager at Human Resources.
E. Change of Address
All non-immigrants are required to notify the U.S. Citizenship and Immigration Services
within 10 days of a change of residential address. Notification of change of address is
accomplished by completing USCIS Form AR-11. Please follow the instructions. Please
also notify the Immigration Services Manager at the Human Resources Office of new
addresses by sending a photocopy of the form submitted to the USCIS.
F. Travel Information
Any sponsored foreign national needs to contact the Immigration Services Manager before
they travel, the Immigration Services Manager will give them information on traveling
outside the United States, traveling to Canada, Mexico & Adjacent Islands, traveling in the
United States, traveling to get a U.S. visa stamp and the delays in the U.S. consulates
(receive a U.S. consular pending administrative processing 221 (G) or worst a 214 (B) U.S.
consular refusal), and on how to Obtain an I-94 at the U.S. port of entry upon their travel
return. It is very important to contact your Immigration Services Manager because in some
cases it will be very difficult to come back to the U.S. if you don’t have the proper
documentation, or it will be recommended no to travel base on the current immigration
status of the foreign national.
G. The University of Texas Rio Grande Valley (UTRGV) Liability
Submission of an H-1B petition by UTRGV on behalf of a prospective employee does not
guarantee that the petition will be approved. The approval of such petitions rests with U.S.
government agencies (Department of Labor, Department of Homeland Security and
Department of State)--not with UTRGV. Be assured, however, that every effort will be
The University of Texas Rio Grande Valley Operating Procedure
January 2, 2017
12
made by the Office of Human Resources to process the paperwork in as timely a manner as
possible.
VIII. Rest of Visa Options and Employment Authorizations at UTRGV
The list below is only a brief summary of other non-immigrant classifications that are
commonly used on institutions of higher education and can also be used at for hiring. This is
for informational purposes only.
1) O-1 Exceptional Ability: Temporary hire for academic staff appointment;
The O-1 temporary worker visa status is designated for individuals of extraordinary
ability in the sciences, education, business, arts or athletics and individuals of
extraordinary achievement in the motion picture and television industries. The United
States Citizenship & Immigration Services (USCIS) determines whether an individual
qualifies for O-1 visa status. O-1 visas are initially valid for up to 3 years and may be
extended in one-year increments. To qualify as an individual of extraordinary ability a
foreign national must show evidence of receipt of a major internationally recognized
award, such as the Nobel Prize or at least three of the following:
Receipt of lesser nationally or internationally recognized prizes or awards for
excellence in the field;
Membership in associations in the field which require outstanding achievements
of their members, as judged by recognized experts in the field;
Evidence of authorship of scholarly articles in the field, in professional journals,
or other major media;
Published material in professional or major trade publications or major media
about the applicant's work;
Evidence of participation on a panel, or individually, as the judge of the work of
others in the field;
Evidence in the form of 5 or 6 letters from prominent colleagues who can confirm
the applicant's original scientific or scholarly contributions of major significance
to the field;
Evidence of employment in a critical or essential capacity for organizations and
establishments that have a distinguished reputation; and
Evidence of commanding a high salary or other compensation for services. This
category does not usually apply to academic positions.
Specifics of Approval
The United States Citizenship & Immigration Services (USCIS) decides whether an
individual qualifies for O-1 classification. The O-1 visa is employer specific, which
The University of Texas Rio Grande Valley Operating Procedure
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means that a USCIS approved petition submitted by the Immigration Services Manager
only authorizes the individual to work in the position specified in the petition filed by
UTRGV. An individual who has an O-1 approval from another employer is not eligible to
work at UTRGV. The employer will be liable for the reasonable cost of return
transportation of the applicant abroad if the applicant is dismissed from employment by
the employer before the end of the period of authorized admission.
2) E-3 Australian Citizens: Australian Citizens in a “Specialty Occupation”;
The E-3 visa, enacted in May 2005, allows for the admission of an alien who is a national
of the Commonwealth of Australia and is entering the U.S. to perform services in a
“specialty occupation.” A specialty occupation for an E-3 alien is defined in the Act in
the same manner as the H-1B context, that is, a specialty occupation means an occupation
that requires the theoretical and practical application of a body of highly specialized
knowledge, and attainment of a bachelor’s or higher degree in the specific specialty (or
its equivalent) as a minimum for entry into the occupation. E-3 workers may be admitted
initially for a period up to two years, and extensions of stay may be granted indefinitely
in increments of up to two years. There is no limit on the total length of stay for an E-3.
Under current regulations, E-3 nonimmigrants shall maintain an intention to depart the
U.S. upon the expiration of termination of E-3 status. An application for initial
admission, change of status or extension of stay in E-3 classification, however, may not
be denied solely on the basis of an approved request for permanent labor certification or a
filed or approved immigrant petition. The Immigration Services Manager must file and
receive an approved Labor Condition Application from the U.S. Department of Labor,
exactly as is required of an H-1B, before an employee may obtain an E-3 visa or E-3
status. However, no petition for employees entering from outside the U.S. must be filed
by the employer with USCIS in advance of the employee’s arrival. Only if a change of
status or extension of stay is necessary to file a petition (Form I-129) to USCIS.
Dependent spouse and children under 21 of an E-3 principal may also derive E-3 status
regardless of the spouse or children’s nationality. Spouses may apply for work
authorization to USCIS only upon arrival in the U.S. Maximum processing time is 90
days.
For whom is E-3 the Best Option?
The E-3 is an attractive alternative to H-1B status for an Australian national who is
coming to the U.S. with a spouse who hopes to work in the U.S. It is also an option for an
individual who may not be eligible for H-1B status or who has exhausted the 6 year limit
on H-1B status. The other advantage is that the petition does not require approval by
USCIS which saves time and money. For a person contemplating an application for U.S.
permanent resident status, the H-1B may be a more suitable option.
What documentation is required for a principal to obtain an E-3 visa abroad or E-3 status
in the U.S.?
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Citizens of Australia apply directly to the U.S consulate for an E-3 visa by presenting the
following documents:
1. Certified Labor Condition Application, filed with the Department of Labor. (For
UTRGV employees, this document would be provided by the Immigration Services
Manager at Human Resources.)
2. Job offer letter describing the specialty occupation, the salary offered, the minimum
requirements for the position and how the individual meets these requirements.
3. Evidence of a U.S. bachelor’s degree in the field or its equivalent and U.S. professional
license if applicable.
4. Evidence establishing that the applicant’s stay in the United States will be temporary.
How can an application for an extension be made?
Scholars in E-3 status have two options for extending their stay:
1. They may return to Australia and re-apply at the U.S. embassy or consulate with the
same documentation that is required for an original application, or
2. They may have UTRGV file form I-129 with USCIS. This option does not require the
employee leave the U.S., but requires a USCIS fee of $320 and can take approximately 3
months.
3) TN Trade NAFTA Status: Citizens of Canada & Mexico can work temporarily in
the U.S.;
The non-immigrant NAFTA Free Trade Agreement (TN) visa allows citizens of Canada
and Mexico to work temporarily in the United States in certain occupations (Please
consult with the Immigration Services Manager regarding the occupations). The most
typical use of the TN visa at UTRGV is for paid employees doing teaching or research.
The general process (there are different details for Canadians and Mexicans below) is to
have a specific TN support letter from the department and the Human Resources office to
enter the U.S. requesting TN status. The TN visa stamp for Mexican is granted only for 1
year and the TN status is granted for up to a three year period based on the actual dates of
employment at the U.S. Port of Entries. The TN visitor is given an I-94 record indicating
that they have been admitted to the US, naming UTRGV as the employer, and listing the
date by which they must depart. The TN employee needs to then register with the
Immigration Services Manager at Human Resources upon arrival in the U.S. Please note;
there is no grace period of additional time to remain in the U.S. beyond the date in the I-
94 record. Canadian nationals do not need to obtain a visa stamp, just their I-94 record.
Please be aware that the TN letter can only be signed by the Immigration Services
Manager at Human Resources or the Human Resources Director. If a department fails to
comply with this then Human Resources has the authority to finish the employment for
this TN visa holder.
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4) J-1 Exchange Visitor: Professor, Research Scholar, and Short Term Scholar;
The J visa’s formal name is the Exchange Visitor Program and is governed by the U.S.
Department of State. The Program was created to “…promote mutual understanding
between the people of the United States and other countries by means of educational and
cultural exchange…” At UTRGV scholars use the J visa for official appointments such as
research scholar, short term scholar, visiting faculty, postdoctoral or postgraduate fellows
and associates, as well as other temporary academic appointments. The spouse and
dependent children of a J-1 student hold J-2 status and can usually obtain permission
from DHS to work in the U.S. For more information on J-1 visas you need to contact the
office of international programs.
5) B-1 The “Visitor” Visa: For short-term visitors and guest lectures;
The B1/B2 visitor visa is most often used for individuals who come to campus to give a
lecture or participating in a seminar or colloquium. And while most short-term academic
appointments use the UTRGV sponsored J-1 Exchange Visitor visa, which is relatively
quick and easy to obtain, on rare occasions it may be possible for an individual to use the
Visitor Visa (either the B-1 Visa obtained from a U.S. consulate or the Visa Waiver for
Business.) These visitor visas are not “UTRGV sponsored” and their success and ease of
use are less predictable. If the activity meets the basic regulatory criteria (listed below), a
visitor to UTRGV may choose to use the B-1 visa or Visa Waiver for Business.
The position is temporary in nature, very short-term, and the visitor has a profession
or studies outside the U.S. they will return to;
They will not be paid a salary from a U.S. source;
They will not be in a job that would normally be filled by a U.S. worker
The activity at UTRGV will primarily benefit the visitor, not UTRGV;
Is able to pass all UTRGV institutional requirements to have access to the activity
/work site; and
There must be evidence that the visitor has finances to fund the visit including
transportation and health insurance.
Honorarium:
There are very specific and limited options about paying honorarium covered in the
UTRGV Procedure for honorariums. You must be familiar with the rules before
committing to paying the visitor an honorarium.
Reimbursement:
Visitors holding B-1 or B-2 visas or Visa Waiver, may accept reimbursement of
incidental expenses under the following conditions:
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For "usual academic activity or activities" involving visits of 9 days or less at
UTRGV, and
The individual has accepted such payment from no more than 5 institutions, in the
previous 6 month period.
6) VWP - The Visa Waiver Program: Nationals of certain countries can travel for
tourism or business; and
The Visa Waiver Program (VWP) enables nationals of certain countries to travel to the
United States for tourism or business [visitor (B) visa purposes] for stays of 90 days or
less (extension or change of status are not permitted) without obtaining a visa. VWP
eligible travelers may apply for a visa, if they prefer to do so. Not all countries participate
in the VWP, and not all travelers from VWP countries are eligible to use the program.
VWP travelers are screened prior to admission into the United States using the Electronic
System for Travel Authorization (ESTA). You must complete your ESTA application
before departing for the U.S.
7) Employees with EAD -Rules & Regulations
Foreign Nationals in certain immigration statuses may have an Employment
Authorization Document (EAD) issued by USCIS. A Foreign National who is permitted
to apply for EAD should do so at least 120 days before employment begins. The USCIS
Form I-765 the actual plastic EAD itself must be in the possession of the employee
before employment can begin. Note this very important distinction: it is not enough to
have EAD approval either from the USCIS website or in paper form. A person in
possession of a valid and unexpired EAD may work in the U.S. only during the validity
dates written on the EAD itself.
A person with EAD can work for any number of US employers. However, UTRGV F-1
students with EAD based on OPT (Optional Practical Training) must work within the
area of their academic degree. F-1/OPT students can work for UTRGV as long as all jobs
are within the area of their academic degree for which OPT was granted and for at least
20 hours per week. F-1 students working under the STEM-OPT extension, have the
additional restriction of only being able to work for institutions who are enrolled in the E-
Verify program. F-1 students with STEM-OPT can work for multiple employers but all
employers must be enrolled in E-Verify. UTRGV is an E-Verify employer. UTRGV
employees must have EAD in hand before employment begins. UTRGV foreign national
employees should not be at the place of employment or begin working before the
approved EAD start date. Again, note that the foreign national employees cannot begin
working (at UTRGV or any other place of employment) until the EAD start date and
must stop working on the EAD end date.
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EAD Renewals:
In some situations, the EAD can be renewed; in other situations it cannot. The foreign
national employee will know whether his or her EAD is renewable. If the EAD can be
renewed, the foreign national employee must ensure that the renewal application is filed
with USCIS at least 100 days before the current EAD expires. This is the only way to
ensure that the new EAD is approved and in hand before the current EAD expires. In
general, a pending EAD application does not provide permission to work, so persons with
a pending EAD application cannot work in the USA.
If the new EAD is not in hand at the time the previous EAD expires, the employee will be
placed on leave without pay (if applicable) until the new EAD is received. If it takes
longer than six weeks to receive the new EAD, the employee will be terminated but can
be rehired once the new EAD is received. To avoid these difficulties, the employee
should ensure that USCIS has the EAD renewal application at least 100 days before the
current EAD expires.
Permissible Activities for Employee without EAD:
As it pertains to UTRGV employees with EAD, please note that UTRGV must comply
with federal immigration regulations and employment cannot begin before the EAD start
date unless the employee has another type of valid and unexpired work authorization
document. UTRGV departments are also cautioned against having an international
employee on work premises engaging in work related activities before the EAD or
employment authorization start date. A foreign national employee can attend Orientation
before the employment start date but the employee should not engage in any other work
related activity outside of the Orientation activities. A foreign national employee who
engages in work related activities or employment before EAD begins is in violation of
immigration status. The University cannot violate federal regulations and foreign national
employees should not violate their immigration status by engaging in unlawful
employment. Departments and employees should contact the Immigration Services
Manager at Human Resources to discuss employment issues if there is a concern as to
when a foreign national employee with an EAD can begin to work.
*Note: EAD - Employment Authorization Documents:
EAD (a) (1) Employment authorized incident to status
EAD (a) (2) Lawful Temporary Resident
EAD (a) (3) Refugee
EAD (a) (4) Paroled Refugee
EAD (a) (5) Asylee
EAD (a) (6) Fiancé (e) (K-1 or K-2 Nonimmigrant)
EAD (a) (7) N-8 or N-9
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EAD (a) (8) Citizen of Micronesia, Marshall Islands, or Palau
EAD (a) (9) K-3 or K-4
EAD (a) (10) Withholding of Removal
EAD (a) (11) Deferred Enforced Departure (Extended Voluntary Departure)
EAD (a) (12) Temporary Protected Status
EAD (a) (13) Family Unity Program
EAD (a) (14) LIFE Legalization
EAD (a) (15) V Visa Nonimmigrants
EAD (a) (16) T-1 Visa Nonimmigrant
EAD (a) (17) E Visa Nonimmigrant Spouses
EAD (a) (18) L Visa Nonimmigrant Spouses
EAD (a) (19) U-1 Nonimmigrants
EAD (a) (20) U-2, U-3, U-4, or U-5 Nonimmigrants
EAD (c) (1) Spouse/Dependent of A-1 or A-2 Visa Nonimmigrant
EAD (c) (2) (TECRO)
EAD (c) (3) (A) F-1 Student, Pre-Completion Optional Practical Training
EAD (c) (3) (B) F-1 Student, Post-Completion Optional Practical Training
EAD (c) (3) (C) F-1 Student, 17-month extension for STEM Students
EAD (c) (3) (ii) F-1 Student, Off-Campus Employment
EAD (c) (3) (iii) F-1 Student, Off-Campus Employment Severe Economic Hardship
EAD (c) (4) Spouse/Dependent of G-1, G-3, or G-4
EAD (c) (5) J-2 Spouse or Child of J-1 Exchange Visitor
EAD (c) (6) M-1 Student, Practical Training
EAD (c) (7) Dependent of NATO-1 through NATO-6
EAD (c) (8) Asylum Application Pending filed on/after January 4, 1995
EAD (c) (8) Asylum Application Pending filed before January 4, 1995
EAD (c) (8) Asylum Application Pending filed before January 4, 1995
EAD (c) (8) Asylum Application under ABC Agreement
EAD (c) (9) Pending Adjustment of Status under Section 245 of the Act
EAD (c) (10) Suspension of Deportation Applicants (filed before April 1, 1997)
EAD (c) (11) Public Interest Parolee
EAD (c) (14) Deferred Action (not based on an approved I-360 petition filed fo
EAD (c) (14) Deferred Action (based on an approved I-360 petition filed for a b
EAD (c) (15) not in use
EAD (c) (16) Creation of Record (Adjustment Based on Continuous Residence)
EAD (c) (17) (i) B-1 Domestic of a Nonimmigrant
EAD (c) (17) (ii) B-1 Domestic of a USC
EAD (c) (17) (iii) Employee of a Foreign Airline
EAD (c) (18) Order of Deportation
EAD (c) (19) Temporary Treatment Benefits
EAD (c) (20) Section 210 Legalization
EAD (c) (21) S Visa Nonimmigrant
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EAD (c) (22) Section 245A Legalization (pending I-687)
EAD (c) (23) Irish Peace Process (Q-2)
EAD (c) (24) LIFE Legalization
EAD (c) (33) Consideration of Deferred Action for Childhood Arrivals
*Special Note: Volunteering Information for Foreign Nationals:
A foreign national cannot perform work as a volunteer if the foreign national
believes that some form of compensation will follow. This specifically includes
volunteering for a trial period leading up to compensated employment.
A foreign national may not volunteer while awaiting work authorization or
change of status (that would enable them to work), even if for a few days.
Dependent family members of H1B, TN1, and O1 visa holders cannot work or
volunteer at UTRGV without participating in the normal recruitment and hiring
processes, including obtaining appropriate employment authorization.
Dependents of J-1 and E-3 beneficiaries MAY obtain a work permit for
unrestricted employment, but cannot volunteer until the EAD is in hand.
A person cannot perform work as a volunteer in a position that would normally be
a paid position. Defining a position as “unpaid” (e.g., an unpaid internship) or
“volunteer” does not mean that it is a legitimate volunteer position, given the
USCIS guidelines and other relevant labor and employment laws.
A UTRGV department or lab that engages in any of the aforementioned,
unauthorized volunteer situations is in violation of federal Immigration and Labor
Laws. Such violations may result in substantial fines and civil and/or criminal
penalties. The foreign national at UTRGV, volunteering as in the above
situations, will violate his or her visa status and may jeopardize his or her ability
to remain in or return to the United States.
Job Eligibility Tables in General Job Eligibility for H-1B nonimmigrant status and Immigrant/Permanent Resident Status
Titles Job Title Eligible for H-1B Eligible for Permanent Residency
Academic Professor X X
Associate Professor X X
Assistant Professor X X
Instructor X
Senior Lecturer X
Lecturer
X
Residents and Fellows
JH
x
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School of Medicine Clinical Professor x X
Clinical Associate Professor x X
Clinical Assistant Professor x X
Clinical Instructor
x
Professor in Practice x
Associate Professor in Practice x
Research Titles Job Title Eligible for H-1B Eligible for Permanent Residency
Professor of Research X
Associate Professor of Research X
Research Scientist X
Research Associate X
Research Assistant X
Postdoctoral Fellow
X
*Exceptions to the above criteria are considered for extraordinary circumstances on a case-by-case basis by the
Director for Human Resources and the Immigration Services Manager. A request for an exception must be first
submitted to our Human Resources Office
Job Eligibility for O-1 nonimmigrant status and Immigrant/Permanent Resident Status
Eligible Teaching Faculty
Positions
Eligible Research Positions
and common Staff
Positions
Staff Positions
Full-time tenured or tenure
track with title of:
Assistant Professor
Associate Professor
Full Professor
Clinical Professor
Full-time non-tenure track with
title of:
Professor of Research
Associate Professor of
Research
Research Scientist
Chess Coach
Athletic Coaches
Staff Internationally
Recognized
Not Eligible
*Exceptions to the above
criteria are considered for
extraordinary
circumstances on a case-
by-case basis by the
Director for Human
Resources and the
Immigration Services
Manager. A request for an
exception must be first
submitted to our Human
Resources Office.
The O-1 temporary worker visa status is designated for individuals of extraordinary ability in the sciences, education, business, arts or athletics and individuals of extraordinary achievement in the motion picture and television industries.
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Job Eligibility for Australians E-3 nonimmigrant status. Not Eligible for Immigrant/Permanent Resident Status
Eligible Teaching Faculty Positions Eligible Research Positions Staff Positions
Full-time tenured or tenure track
with title of:
Assistant Professor
Associate Professor
Full Professor
Lecturer
Clinical Professor
Full-time non-tenure track with title
of:
Professor of Research
Associate Professor of
Research
Research Scientist
Research Associate
Librarians may be eligible
*Postdoctoral Fellows are not
eligible for sponsorship*
Not Eligible
*Exceptions to the above criteria
are considered for extraordinary
circumstances on a case-by-case
basis by the Director for Human
Resources, Chief Human Resources
Officer and/or The Office of the
Provost. A request for an exception
must be first submitted to the office
of the Provost
Australian Citizens in a “Specialty Occupation”;
Job Eligibility for Canadians/Mexicans TN nonimmigrant status. Not Eligible for Immigrant/Permanent Resident Status
Eligible Teaching Faculty Positions Eligible Research Positions Staff Positions
Full-time tenured or tenure track
with title of:
Assistant Professor
Associate Professor
Full Professor
Lecturer
Instructor
Clinical Professor
Clinical Associate
Professor
Clinical Assistant
Professor
Full-time non-tenure track with title
of:
Professor of Research
Associate Professor of
Research
Research Scientist
Research Associate
Librarians may be eligible
*Postdoctoral Fellows are not
eligible for sponsorship*
Not Eligible
*Exceptions to the above criteria
are considered for extraordinary
circumstances on a case-by-case
basis by the Director for Human
Resources, Chief Human Resources
Officer and/or The Office of the
Provost. A request for an exception
must be first submitted to the office
of the Provost
§ 214.6 Canadian and Mexican citizens seeking temporary entry to engage in business activities at a professional level. Complete List of Available Professions Covered by NAFTA
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Job Eligibility for J1 nonimmigrant status. Not Eligible for Immigrant/Permanent Resident Status
Eligible Teaching Faculty Positions Eligible Research Positions Staff Positions
Full-time not tenure track with title
of:
Visiting Assistant
Professor
Visiting Associate
Professor
Visiting Full Professor
Visiting Clinical Professor
Short Term Scholar
Full-time non-tenure track with title
of:
Research Scientist
Research Associate
Research Assistant
Postdoctoral Fellow &
Associate
Research Scholar
Physicians (Residencies
and fellowships)
Not Eligible
*Exceptions to the above criteria
are considered for extraordinary
circumstances on a case-by-case
basis by the Director for Human
Resources, Chief Human Resources
Officer and/or The Office of the
Provost. A request for an exception
must be first submitted to the office
of the Provost
J-1 Exchange Visitor - Official appointments such as research scholar, short term scholar, visiting faculty, postdoctoral or postgraduate fellows and associates, as well as other temporary academic appointments
IX. Related Statues, Polices, Requirements or Standards
1. Title 8, Code of Federal Regulations (DHS/USCIS)
2. Immigration and Nationality Act (INA)
3. Title 20 Code of Federal Regulations.html (DOL)
4. Title 22 Code of Federal Regulations (Foreign Relations – Munitions List)
5. Policy Library - UTRGV Handbook of Operating Procedures (HOP)
X. Other Related Helpful Resources and Guidelines
1. Human Resources – Immigration Services Website
2. U.S. Citizenship and Immigration Services (USCIS)
3. Department of State (DOS)
4. Department of Labor (DOL)
5. U.S Customs and Border Protection (CBP)
6. Foreign Affairs Manual Visas (DOS)
7. Adjudicator’s Field Manual (USCIS)
8. Export Administration Regulation (DOC/BIS)
9. Munitions List (International Traffic in Arms Regulations)
10. FN Driver’s License (TXDPS)
11. Social Security Administration (SSA)
12. Internal Revenue Service (IRS)
13. American Civil Liberties Union (ACLU/Know your Rights)
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XI. Forms
1. UTRGV H-1B Request Packet
2. Foreign National Application Checklist
XII. Contact Information
Please contact Alberto Castillo, Immigration Services Manager at the Office of Human
Resources with any questions or concerns regarding this procedure. He is available at 956 665-
3021 or [email protected] .
XIII. Disclaimer
The information contained in this procedure should not be construed as legal advice, but is
intended for the general, informational use by The University of Texas Rio Grande Valley
community members.
XIV. Operating Procedure Review
This Operating Procedure shall be reviewed every two (2) years, or as required by State or
Federal legislation, by the Immigration Services Manager and the Director of Human Resources.