Director for Immigration. I have with us today, Kristen Dennis, who is a partner at Goldblum, Pollens, and Dennis, and she will be presenting on this. Some quick housekeeping items. If you have any questions, please put them in the chat or Q&A. We will answer them most likely at the end. Please also note that case-specific questions may need further follow-up, so please try to keep your questions mostly general. And this is also being recorded, and you should be receiving a follow-up email with this information if for some reason you have to jump off or we're unable to attend. And with that, I will hand it over to Kristen. Good morning. Thank you, everyone for joining. Let's talk about sponsoring your employees for permanent residents. I understand that there was recently a session about temporary sponsorship. So that is an excellent segue to start with. how we make that transition from temporary statuses to permanent residents. So you'll see on the left side, non -immigrant statuses. Your employees need to maintain one of those temporary non -immigrant statuses until they get all the way over to the right side of the screen and have a green card in their hands. How long that takes is incredibly variable. It depends on the process that they're pursuing toward permanent residence. It depends on available numbers of employment -based green cards, each government fiscal year, changes in government policy. There are many, many factors that can influence how long it takes to get from one to the other. And that can inform the types of temporary statuses that your employees start with, change to, and ultimately end up with before receiving a green card. So you'll see on this screen that there are two primary employment-based tracks to permanent residents. The most common pathway is across the top of the slide, and that's recruitment -based sponsorship. That has three steps to it. It begins with a test of the labor market, which we call labor certification. And there are two different types of labor certifications depending on whether we're talking about a teaching position, so your faculty, or everyone else who's not teaching. And the big takeaway regarding labor certification right now is that it takes a long time. And that is primarily because this step is centered with the U.S. Department of Labor. They are not be funded the way their colleagues over at U.S. Citizenship and Immigration Services are, and they have been perpetually underfunded in this area for decades at this point. So that particular step of permanent residence takes a long time for everyone right now. That first step, if successful, is followed up by an immigrant petition. That's where the employer demonstrates that their selected candidate has all of the qualifications and requirements that were laid out in the labor certification, and you're establishing that for U.S. Citizenship and Immigration Services. You'll hear a lot of references to EB1, 2, and 3. These are called preference categories, and we'll talk about those. But your preference category is determined by the position requirements. So if a position requires only a bachelor's degree for entry into that job, we're talking about third preference category, EB3. If the position requires an advanced degree, we're talking about EB2. Preference category is not determined by the degree level of your employee. It all turns on the position requirements. After an immigrant petition is approved, the third. and final step in this particular pathway is the green card application itself, and this is another area where candidates are having to wait to become eligible, and that's because there is an annual numerical limit on employment -based green cards, and in every category right now, virtually, there is oversubscription. That means there's more demand than there are available green cards, so individuals have to wait to actually become eligible to file the green cards. application. And then even once you file it, it's taking the government about a year to adjudicate. Across the bottom of the screen are some of our other categories of sponsorship, and those start with an immigrant petition. So these pathways skip that first test of the labor market. These include the national interest waiver. There's a category for scientists of exceptional ability. And then outstanding professors and researchers and if you think of it as a pyramid all the way at the top is a category for extraordinary ability non-citizens. These petitions are far more detailed and in depth than what is required for immigrant petitions based on labor certification because we're having to establish multiple regulatory criteria. All of that has to be supported with primary source documents, testimony, things like that. So these are large submissions. If approved, again, the individual has to wait to actually file the green card application for their place in line to come up and for them to be eligible to move forward. So who can you sponsor for permanent residents? So the university has a policy where it generally sponsors only full-time regular employees who are in certain academic positions. Regular positions are full-time and either tenured or if not tenured, they have no fixed date of termination. So these can be, for example, your research associates, I believe is the title that indicate a permanent position as compared to a non -permanent post-doctoral fellow position. Typically, the university does not sponsor staff who are in non -academic positions unless the department can make a special case for an exception to the policy. And we'll talk about that special case, but really because individuals in these non-academic, these non-teaching positions are going to have to go through a more challenging test of the labor market, the university is going to ask departments to essentially establish the foundation for them. that test. And we'll talk about what that entails. U.S. immigration law does not permit U.D. as an employer to sponsor part-time or temporary employees for permanent residents. And so that's typically where your postdoctoral researchers are impacted because they're not considered sufficiently permanent. However, those individuals, specifically your postdocs might have options to pursue self-sponsored pathways to permanent residents where they're not reliant on having a specific offer of permanent employment from an employer. We'll talk about those pathways as well. Really important, a university-sponsored immigrant application cannot be initiated without authorization from the Office of International Students and Scholar Services. So they should always be your first step. They're going to collect that preliminary information that helps our office do an initial assessment and make a recommendation of the pathway. So you always want to start with that office. Importantly, all of the pathways to permanent residents now and for the last several years are taking longer than ever. So starting the process as early as possible is becoming more and more important. And that's because most of the temporary statuses that your employee will rely on to get them all the way through to that green card have time limits on them. They are temporary, so they are not, in most cases, renewable indefinitely. And so what that means is if you wait until an employee who's in H-1B status is in their sixth year of H -1B time, you are not going to have enough time to get through any of these permanent residence processes before they run out of that H-1B time. Most of your tenure track faculty members are going to utilize the special recruitment labor certification process. So that's one of the three-step processes. Starts with that test of the labor market, then the immigrant petition, and then the green card application. You, with our guidance, might also consider first preference pathways for outstanding professors and researchers. It, they are more labor -intensive submissions, but because you're eliminating an initial step, and because of the preference category, this can be a faster ultimate pathway to the green card for individuals who qualify. And we will talk about the national interest waiver, which was a helpful alternative to labor certification. Again, it lops off the need for that first step and the time that is inherent in that. But as that pathway has become more popular, we've started to see more pushback from the immigration agencies. And so it's a balancing test right now as to whether that's a worthwhile pathway in individual cases. For departments that sponsor non-faculty employees, if they don't have teaching responsibilities, you're going to be stuck with what we call the basic perm process. It's labor certification. It has a more challenging standard. And then depending on the job requirements will lead to either second preference or third preference. and the wait times that are inherent in that. And we will talk about all of these in more detail. Let's start with preference categories. EB-1, EB-2, EB-3, what do they mean? So, U.S. law limits the total number of employment-based green cards that are available each government fiscal year. So we're talking October 1st through September 30th. That total number of employment -based green cards are divided up based on the employment type, so the outstanding professors and researchers, the positions that require advanced degrees, the positions that only require a bachelor's degree. And then they're further divided up based on the sponsored employees country of birth. And that is so that individuals from any one country don't use up more than 7% of that total number of available green cards. So I mentioned this earlier. If the job requires only a bachelor's degree, we're talking about EB3. If the job requires at least an advanced degree to be appointed to that role, we're going to talk about EB2. And then if we have extraordinary or outstanding ability and sustained international acclaim, we're talking about first preference category. Your preference category plus your country of birth tells you how long you're going to be waiting in those lines to be eligible to file your green card application. So this is what we call the visa bulletin. It is a monthly publication of the Department of State and U.S. Citizenship and Immigration services. And it's basically the waiting list. It says who is eligible to file their green card application this month. This data is actually for next month, for April. And so you can see, if you qualify in the EB-1 category and you are not from China, India, Mexico, or the Philippines, you are what's, I'm sorry, if you're not from China or India, you are eligible to file based on any priority date at this point. But if you're in the first preference category and you happen to be born in China, to file your green card application in April 2025, you needed to have gotten in line before November 8, 2022. So you can see that as a several year-long wait for individuals from China and India. If we look at the other preference categories, EB2 and EB3, you can see that everyone has a wait list. Everyone has to have already gotten in line at this point to be eligible to file a green card application in April. And you can see that the wait times for individuals born in India in particular are horrendous. They are several decades long. You get a priority date, which I tend to liken to your ticket at the deli counter. When is it going to be your turn? You get a priority date with the first filing in a case. So if we're doing a labor certification case, it's when we file the labor certification with Department of Labor. If we're doing one of the processes where you skip that step, it's when we file the immigrant petition itself. and that is why starting the permanent residence process and securing that priority date for a sponsored employee becomes so important because virtually everyone that you work with and sponsor is going to be subject to some type of a weight at this point and for those individuals from China and India getting securing that place in line is absolutely critical So some important context to give to this. There are multiple charts in the Visa bulletin that comes out each month. The really important one is what we call final action dates. It's not until your priority date is earlier than the final action dates that the government can actually approve a green card for you. There are some months where people get an early filing option and you can file the application, but you're still not at a position where USCIS can approve the green card. So the final action dates are what we pay the most attention to. And at a certain point in the government's fiscal year, USCIS and the Department of State will switch from allowing the early filing option to these final action. dates. And that has already happened this fiscal year. It happened back in February. And what that means is that the government thinks they already have enough applications in hand and in process to use up all of the green card numbers for the rest of this fiscal year. So anybody whose case is going to get approved between now and September 30th, their case is already filed. So everyone else who might get a chance to file over the next couple of months, the likelihood is that they are not going to get a green card approved until a subsequent fiscal year. And to, again, give you more context for your individuals who are born in India, their filing window, their eligibility window for EB-1, which is, you know, the most extraordinary of applicants, has been stuck at February 22 since July of last year. It is inched forward by days at a time since then, but essentially for almost the last year, the only Indian nationals with approved EB-1s who have been able to actually file their green card case, how to have gotten in line before July of 2024. I'm sorry, before February of 2022. So it's a several -year-long backlog and even EB-1, which used to be reliably eligible for filing. It makes it one of the most popular categories for candidates to ask about and try to pursue. Another development that is likely to impact overall processing times for permanent residents is that we anticipate that U.S. SCIS may revert back to requiring in-person interviews for all adjustment of status green card applications. We saw this happen briefly in 2019. It came back. And what that means is that a green card application gets filed. It goes through pre -processing at one of the large centralized service centers at USCIS. but then they send the individual files out to their local field offices where your employee actually has to come in and attend an in-person interview where they are asked about their employment and also their eligibility for a green card. This first rolled out briefly under the first Trump administration and what we saw was that the local field offices simply weren't staffed and ready for the influx of time. that having to give everyone an in-person interview requires. The requirement went away when COVID showed up and nobody was doing anything in person and has been generally suspended since then, other than for specific cases that may have an individual fact pattern that requires an interview. But we anticipate that we will see that shift back to making everyone come in for an interview. And what that means is it's just going to take longer for cases to get through that process based on staffing issues alone. So if we compare the two major tracks toward permanent residents, we've got this labor certification on the one hand. It leads to EB2. So what that means is for China and India. If they go through this process, they're going to have a significant wait time to when they actually get to file their green card application. But generally for everyone, because of delays at Department of Labor, it is a long process to get through while you're waiting on them. And yet, the deadlines are unforgiving. So Department of Labor is not beholden to any particular timeline. We can see their timeline shift as their workload and staffing change, but you don't get that benefit. They're are incredibly strict deadlines as part of that process and you have no wiggle room on them. However, a really good factor about this process is that it is less discretionary. Essentially, you as the employer are setting the requirements for the role when you place your ads for the position, particularly in the special recruitment, the faculty context, you are allowed to choose the most qualified candidate, so it aligns very well with your typical hiring. processes. So essentially, if you keep all the necessary supporting documents that we'll talk about and you meet the deadline, it is hard to get a denial, which makes us a really great option. And as I indicated, it's really based on and similar to your real world search process. So by the time you're talking to us, you've generated most of the documents that are going to be needed for the process. If you compare that to both EB-1 Outstanding Professor and the National Interest Waiver pathway, both of those are incredibly discretionary pathways, which mean the statute and regulation set out certain criteria that the beneficiary or sponsored employee has to meet and give you some options for how you prove that. But it is highly discretionary, with the adjudicating officer, whether they accepts the evidence that's provided and how much weight they give to individual pieces of evidence when considering whether the foreign national meets the regulatory standard. So there is a much greater leeway for the officer to deny one of these types of cases. And in particular, as the laborer, certification process has started to take longer and drag out. We saw a huge move among applicants to try and pursue national interest waivers. So not as high of a standard as EB-1, often better formulated for recent graduates or even individuals who might still be host docs or potentially in their PhD programs. But because of this huge, huge influx of applicants in this category, beginning almost a year ago at this point, we've started to see the agency really scrutinize these cases more closely. And we've seen more pushback in terms of challenging whether applicants actually meet the standards. And that seems directly attributable to just the larger quantity of applicants that the government is seeing in these categories. So some other adjudication trends that we're seeing of late, so we're seeing more instances of missing receipt and approval notices, which often can be resolved ultimately, but it adds time and often anxiety to the process for your sponsored workers. There are my USCIS online accounts that the government likes to tout as a great option for getting faster access to things like receipt notices, but most of the employment-based filing processes are not yet included in that system, so it doesn't actually help anyone with that issue. We're also starting to see increasing instances of U.S. citizenship and immigration services exceeding premium processing adjudication timelines. So premium processing is available in many of the employment -based categories. It means you as the petitioner can pay the government more money to get a decision on a faster timeline. So the first thing we saw was them changed that timeline from calendar days to business. days. So same amount of money, and it actually coincided with a fee increase, so more money and longer processing times. And of late, I'd say within the last six to eight months, we've started to see them not even meet those business day processing times. Now, if they exceed the specified time period, they are supposed to return that extra money you paid them because of their failure to fulfill the promise. And we are seeing them doing that. So that is one good sign, but it's not helpful if this was a case where you or the foreign national really needed that faster processing to meet a different type of timeline, for example, in the H-1B context. And what we're concerned about is return to office policies in the federal government, proposed cuts to federal civil service staffing, and also funding lapses that we're keeping an eye on for this Friday. They're likely to create new staffing challenges. If there aren't people there to adjudicate the cases, we're likely to see increased processing times, potentially increased instances of them going beyond premium, and for the Department of Labor, you know, any staffing challenges that they experience are just going to make those timelines worse. So that's something that we are monitoring and worry of, but I think, you know, U.S. departments can expect that all of these processes are likely to start taking longer, certainly on regular filing timelines. And so what that means for you really is, you know, maybe you're having to do more H-1B extensions, which come at across to the institution. Your foreign nationals are going to be incredibly anxious about this because while they're in temporary statuses, you know, they experience more restrictions in their ability to travel internationally for conferences or to visit family. It is simply a less secure position to be in than to ultimately have your green card. So as that pathway to the green card starts to take longer, it's going to create more anxiety for your employees. So the nitty gritty of labor certification, this really is our most common pathway to permanent residents. And it's important to remember the context that this particular step of the process happens. It's with the Department of Labor and their whole object is to protect the U.S. workforce. So all of these hoops that they're making you jump through the documents they're asking to see is part of their mission to ensure that permitting the permanent employment of a foreign national is not going to adversely impact the U.S.-based workforce. So what do you as a hiring department have to demonstrate? You made a good faith effort to attract U.S. workers to your open position, and that for your faculty searches, all U.S. worker candidates were found less qualified than the foreign national that you hired. Again, you're allowed to choose the best, but you have to be able to demonstrate to the Department of Labor why that candidate was more qualified than those you eliminated. This final bullet is, it should have bells, whistles, flashing lights. This type of labor certification, special recruitment labor certification has to be filed with Department of Labor within 18 months of the date of selection. DOL guidance tells us that date of selection is the date the offer was extended to the foreign national and that is generally memorialized on your offer letter. So what is the date that you said Dr. Doe were offering you this position as tenure track assistant professor? And we know that those offer letters go out much earlier than that person will ever step foot on your campus. They often go out much earlier than even a temporary sponsorship discussion might kick off. And that's because this deadline is immovable, regardless of whether Department of Labor starts to take extra time to do their job, we don't get any wiggle room in this 18 months. So if you make an offer and it's accepted and that person requires sponsorship to work for you permanently, the time to start the process is immediately. And one of the challenges with that deadline being immovable is that one of the aspects of a labor certification is obtaining a prevailing wage from the Department of Labor. And this is true even for your faculty positions that are governed by the collective bargaining agreement. So the government says if we have an arm's length CBA, the CBA wage is the prevailing wage. But you still have to submit an application and get our sign off on that wage. And as recently as last hiring cycle, the Department of Labor was taking over a year to issue prevailing wages based on collective bargaining agreements. So they are already eating up 12 months of that 18 months. and that's assuming that you are filing prevailing wages, you know, moments after that offer is accepted. We've started over the last several months to see those processing times come down, but we don't have any guarantee that they stay at the current time period, which is around seven to eight months. So we have no control over whether Department of Labor starts to take longer to issue those wages. So that just drives home the point of you can't wait. You can't wait and see how the person does when they get to campus. If you have hired someone who needs sponsorship, we have to start this process concurrently with the onboarding process. And one of the other areas that makes faculty positions especially challenging is there's a requirement in the process that the person, your sponsored worker, meet the requirements at the time of selection. Well, we know very frequently in the academic hiring process, you are hiring people who are all but dissertation. They haven't quite finished it yet. They're on track for it. They're on track to get that degree before they. come to campus, because you have to start this process so early, if something happens that they don't get the degree in time, or they don't fulfill one of the other requirements for the role by the time they're ready to start, that will derail this process because we've already told the government to qualify for this job. The person needs qualifications X, Y, and Z. If one of those falls through, we can't move forward on this process and it generally will require to do a re-recruitment. So an area of risk, not terribly much you can do about that, but it's important to be mindful of if you have candidates who are coming in and they don't have that final degree yet, there's an element of risk to the case. the job requires testing the labor market and that means advertising so what ads do we have to be able to provide we need a national professional journal it can either be a print ad or it can be a 30-day online ad the gold standard is the chronicle of higher education higher edjobs.com is also acceptable to fulfill this checkbox of the national professional journal um If for some reason you're advertising and sources other than those two, I recommend running the source by either OISS or you can reach out to us to ask about it because what you don't want to find out is after you hire the person that the advertising didn't comply with this process and therefore we can't pursue labor certification because you've already lost that time. And we'll come to this kind of on the next screen, but you also have to keep evidence that these ads happened. So I know a lot of recruiting will kind of go through your partners over in HR, and they're generally good about keeping receipts and evidence. But to the extent your department is using other sources beyond those typical ones, maybe listservs that are common. in a particular academic field or other lesser -known job boards, you have to keep PDFs, print copies of what those ads looked like to the applicants so that we can attest to the Department of Labor the dates that ads were posted in the locations. UD jobs, generally all of your ads are showing up here anyway, but what makes this resource incredibly important is that I do. Ideally, all of your other ads are going to direct people to apply through the UD jobs portal. And it's helpful because that system does an excellent job of tracking every applicant to the job when they applied and what happened as they moved through the process. And we'll talk about why that's important in a couple slides. And then any other recruitment sources that you normally use. So as I mentioned, I know there are some academic fields where you might rely on. certain listservs that are reaching audiences at universities with these programs worldwide. If you use any of those sources, you just have to keep a record. But contents of the ad are also critical because how you advertise the role is what the Department of Labor determines to be the requirements for the position that your candidate then has to meet. So the ads absolutely have to contain the job title, the duties, and the requirements of the position. You have to adequately inform your audience what is required of you to do this job. Preferred qualifications, which are non-essential to the position, should not be included in the advertisements. And this is a frequent area of tension because most institutions want to be completely transparent of, This is what our ideal candidate looks like. They're going to have these core qualifications, but also if you have these other skills, that's a benefit. And while that absolutely makes sense from a, you know, real world hiring process and from that transparency component, in the immigration process, that can create a number of unintended consequences. We really want that ad language to be the same across all your ads. And generally, I've seen from your processes that you start by setting your ad text and then that is uniformly published, but you always just want to be wary of any ads that might have additional requirements that don't appear elsewhere because that will still count as a requirement in the integration process. We talked about routing your applicants through that UD jobs applicant portal, but you also have to consider applicants that apply outside that. So if someone decides to email the search chair, their application materials, they do still need to be considered and accounted for. And really, we like ads that run concurrently, again, where you're setting uniform ad text, publishing it all at the same time, it all comes down at the same time. It just makes that record keeping and accounting for any different is easier to avoid. But the big things to be mindful of one setting ad language, think of the department as your overly literal friend. If you say one year of teaching experience, the Department of Labor reads that as 12 months, a full -time experience. If what you actually mean, or what the department would actually accept is an academic year of experience, And if part-time teaching as a graduate assistant is acceptable, it's better that you are specific that those things count. Because, again, DOL's default perspective is, if you say a year, I want to see 12 months and I want to see full-time teaching experience, which can eliminate a lot of your fantastic candidates who are, again, coming out of their Ph.D. programs. I mentioned preferences, and that's because, because the Department of Labor treats preferred qualifications that are in your ads as requirements. Essentially, they take the view that by putting preferences in there, applicants for the job are going to read those as requirements and might be discouraged from applying if they don't have the preferences. I think most job applicants know what it means when you say, you know, master's degree required, Ph.D. preferred, but the Department of Labor says, no, you're going to scare away people who don't have their Ph.D. yet. So any preferences that you put in there become the basis of the actual requirements that you have to demonstrate. And again, that's where it becomes a challenge in the academic context where frequently we're dealing with candidates who are not yet done with their degrees or, you know, you might have an idea of what your ideal candidate looks like, but you're willing to hire someone who doesn't have those requirements, leave them out of the ad. And then I mentioned that the candidate you select has to meet the advertised requirement at the time of selection, which is why ads that say Ph.D. in X subject matter, all the dissertation considered. can be helpful or setting the PhD by start date of employment. Again, for your overly literal friends at the DOL, it clarifies for them that you're doing this hiring process, you know, in January, February, when people are still finishing up their degrees. So I've included in the slides, which will be shared afterwards, kind of a sample of what an ideal ad text look like. We have the title, We have the institution that's inviting the applications. We want you to say, whether it's on your track or continuing track, what are the duties? And you can keep that pretty short and sweet. And then what are the requirements for the job? And there's a reminder in there that as you add additional qualifications and requirements, they're going to have an impact on your assessment when it comes to the immigration pathway. You are required as the employer to maintain evidence of your recruitment efforts. So all of these things have to be documented, and we are going to ask you for copies of them because they go in a very specific compliance file that has to be maintained for a certain number of years. So it's really important to keep these records. And I know some people on this audience have probably been pestered by my team to provide this information. So we need tear sheets. We need many of the ad sources now will provide certifications. This ad text appeared on our website from start date to end date, which is exactly what we need for this process. Ideally, we want to see copies of what the ad looked like to applicants. Again, Department of Labor's role here is to consider what did a job applicant think the requirements were. So keep copies of all of these ads that you're placing. And then the next step, as applications start to come in, is being able to document all of the applicants and exactly what happened to them throughout the process. So I've mentioned before, you have to track applications from any source. There was some litigation in the past involving Facebook where they said, you must apply in one specific pathway. And anyone who didn't follow that rule was immediately eliminated. On the one hand, it makes sense of failure to follow application instructions. It doesn't reflect very well on the applicant. But the Department of Labor said what you're actually doing here is, again, trying to discourage or artificially shrink the applicant pool. set clear deadlines for complete applications. This is a clear area. If you say, you know, we're accepting applications, your application must be complete by deadline. And someone misses the deadline. That is a acceptable reason for them to be excluded from further consideration. And then as you're keeping track of what happens to applicants, we need you to document the job -related reasons why they are eliminated from further consideration. was the application incomplete by the deadline? Are they missing a required degree? Are they missing required experience? Did they withdraw from consideration? And then as you get further on into the process and we're dealing with that, who is the most qualified? You're going to have to articulate how the candidates stack up against each other. So one candidate may not move on because they don't have as many publications as your top or as you get into interviews, they perform poorly in response to questions or their teaching demonstrations not well rated by the faculty or the students in attendance. Document all of this because you have to be able to explain it to the Department of Labor. We recommend that you keep this information in candidate evaluation spreadsheets. Many departments, you already have your own internal working copies. I've seen rubrics. The engineering fields really love to have, you know, weighted means and averages of scores. And we love that because, you know, you're assigning a number and it's very clear to see who's in your top 10 and who didn't meet that threshold. There's no format. But again, you need to be accounting for people and documenting why they're being eliminated. Other areas as reminders in terms of keeping these records, let's say someone withdraws and they send a letter or maybe they withdraw during an interview. You want to get that in writing and document it so that as you're collecting the recruitment records, there's evidence of why candidate X has disappeared from the spreadsheet. What happened to them? Where did they go? And you can kind of see, this is an example that I have here in the background of how this data is often collected in the UD jobs tracking system. So I know business administrators have access to this human resource information system. It was called Talent Link. I'm not sure if it's still called Talent Link. But it has everyone's names. It has the reasons why they've been eliminated. So you can kind of see in complete application, search committee unsuccessful, semi -finalist interview unsuccessful. We can see when they applied. We can even see what ad was kind of the basis for them coming to you. There's a lot of data in that information system that is incredibly helpful to this process. That's not it, though. So don't think that just generating that bulk export list is going to be sufficient. Again, we need that detailed information. And so making sure that the search committee is keeping their records. If, you know, all four members of a committee, divide up the total applicant pool, make sure that there are records of candidates 1 to 10 and 11 to 20, et cetera, what their ratings are. You can see here kind of some notes from a particular search, but, you know, one candidate had no research since 2010. That makes them less qualified than the candidates that are advancing. You can see numerical scores. I like the one at the bottom. I don't know if you can see it, a tax wrong cover letter. Oops. Again, that's a fair indicator of, you know, this person didn't take the time and care to apply to this position while others did, not as qualified. Keep these at the end of every search, regardless of whether you know yet or not that the selected candidate requires sponsorship, because it is much harder, particularly when we're talking about these types of records from individual search committee members, it is much harder to find them a year after the fact when we're saying, hey, you have these four people on campus, but we don't know why candidate A was more qualified than the other three. So collecting them at the end of a search is really critical. Don't let them sneak out of your grasp. So all of the search information, it should be reviewed by your chairs of search committees and then your HR representative or recruiter. We want to make sure they're accurate and complete when they're coming over to us. We weren't there for the search. So we don't know what happened and we're going to keep coming back and asking these questions. But again, generally by the time a case comes to us, at least some time has passed. from the search process. And it just becomes more difficult to put those pieces together as more time goes by. The labor certification itself that's submitted is under penalty of perjury. And inaccurate information can really create difficult consequences for the institution and for the sponsored worker if there are errors in information. The burden of proof is on the university as the employer. So the records have to be accurate and complete. This is a general overview of how the process works once it comes to our firm. So someone in your department is going to complete that permanent residence initial review form. That, along with the supplementary documents that it requests, helps us to review and assess those different pathways to permanent residents and make a reference. recommendation. Okay, this person just got their PhD. They haven't accumulated a ton of accolades in their field. Labor certification special recruitment is going to be the best. Or, oh, this person we can see is from India. They meet a lot of the regulatory requirements for EB -1. That's going to be the faster preferred process for them. So we'll give you that feedback. We're going to use all those recruitment records in the labor certification context to prepare the required pieces of the application, that prevailing wage, a notice that gets posted, the portions of the application, it all has to match and be accurate, can't change throughout the process. We'll be working with the employee to document how they satisfy the qualifications, and then ultimately, when all those pieces come together, we will electronically file, and then as you can see, we will wait for quite a while. When we're talking about EB-1B, which I would say is generally the second most common type that we might recommend, here we're having to demonstrate that the sponsored employee has received international recognition for their outstanding achievements in a particular academic field. And how do they demonstrate this? they have to satisfy at least two of six regulatory criteria. Obviously, that's a floor. The more of those boxes that they can take off and satisfy, the stronger. But then the second component of the adjudication is what's called a final merits determination, where that officer is going to look at the submission as a whole and evidence that's supplied about essentially how this candidate stacks up against their peers and make a determination. as to whether they meet that outstanding standard. Your candidates for this pathway also have to have three years of qualifying experience. This is typically expected to be post PhD. We can rely on work experience that they gained prior to the PhD, but USCIS is going to impose a higher standard of accomplishment on that. And then they have to have a qualifying offer of employment from you. So again, it has to be that tenure, tenure, track teaching role, or a comparable permanent research position. If the job doesn't fall into one of those two categories, EB1 is going to be off the table. Only the university can submit an EB-1B outstanding professor researcher petition. It requires a petitioning employer, so the individual can't self-petition. You have to be willing to sign off on supporting documents that attests to the outstanding nature of the employee's work. I generally don't see this come up as an issue at University of Delaware. There have been some other institutions we've worked with where the foreign national is really pushing for EB-1, and they really have a borderline or a weak case, and those will come down to whether the institution feels comfortable telling the U.S. government that this individual meets the standard. Again, not usually an issue for your hires. What do they have to establish original scientific or scholarly research contribution, authorship of scholarly publications, what's the government looking for there? Again, high impact factors, high citation counts, first author. Have they served as an editor or manuscript reviewer for prestigious journals or conferences that's serving as a judge of the work of their peers. Has there been published material by other people about their work? Have they received any major prizes or awards that are based on outstanding achievement? And then do they have any memberships and associations that require outstanding achievements? So most of your professional academic organizations are not going to qualify if it's just you become a member by attending a conference. Because of the level of achievement that's required, this process is generally rarely rarely appropriate for your newly minted PhDs. I mentioned that the national interest waiver is the alternative. We've seen the greater pushback there. We saw this actually turn into some January 15th policy announcements, those actually predated the current administration, so we don't know yet the extent to which those will actually be implemented or tossed aside, but it does sort of give stricter scrutiny to many of the elements of the application process. And just anecdotally, through specific cases, our firm and our colleagues have seen really significant pushback on this particular avenue towards permanent residence. For the eBay 1 being the national interest waiver, unlike labor certification, there's no very specific deadline to file, and what's going to guide you on timing here is really going to be access to temporary status. Preparation time is approximately 8 to 12 weeks. That used to be longer than how long it took to put together a labor certification because prevailing wages have gotten longer. We actually can put these together on a faster timeline than a labor certification. But you don't have to wait is really the takeaway. The process happens pretty much along the same lines as labor certification. It's going to start with that permanent residence initial review form. And then the bulk of preparation on these capes types is going to happen between us, and the foreign national, because we're gathering all that proof of their accomplishments. So we talked about how that permanent residence review form is really critical. Please, please, please make sure that you send over position advertisements and the individual CV, because that helps us assess the best pathway. and that date of the offer letter is most critical because that tells us where we are in that 18-month timeline for labor certification. And with that, I know we're over an hour at this point, but if we've got questions, all of that information.
CGPS | Sponsoring Employees for Permanent Residence
From Bradford Rush March 13, 2025
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