EMPLOYMENT OF FOREIGN NATIONALS By Catherine Walker Foreign National

EMPLOYMENT OF FOREIGN NATIONALS By Catherine Walker Foreign National Program Manager

Departments and Agencies Department of Homeland Security Department of State Department of Labor

Department of Homeland Security (DHS) Comprised of three main organizations: United States Citizenship & Immigration Service (USCIS) – Approve all petitions for U.S. visas Customs & Border Protection (CBP) – Secure the Nation’s borders Immigration and Customs Enforcement (ICE) – Investigative arm of DHS

Department of State U.S. Embassies and Consulates: Located throughout the world Embassies are located in the capital city of a foreign country Consulates are smaller versions of an embassy and are generally located in large tourist cities within a foreign country Both embassies and consulates can issue U.S. visas

Department of Labor Office of Foreign Labor Certification (OFLC): Process labor certification applications for employers seeking to hire foreign nationals Ensure foreign nationals will be paid at least the prevailing wage rate within area of employment Ensure foreign workers in the U.S. will not adversely affect job opportunities, wages and working conditions of U.S. workers

Eligibility for Federal Employment

Laws & Regulations The Federal Government may hire foreign nationals who meet the following: Immigration Annual Law Appropriations Act; and Executive Order Restriction on Appointing Non-Citizens in the Competitive Service Excepted Service Appointments – must meet top two requirements Competitive Service Appointments – must meet top three requirements

Immigration Law U.S. employers may only hire an individual who is: A citizen (either by birth or naturalization); Lawfully admitted for permanent residence; Lawfully admitted for temporary residence; An alien admitted or paroled into the U.S. as a refugee; An alien granted asylum; A fiancé, fiancée, child, or parent of an alien who was admitted under certain conditions; An alien who is authorized employment with a specific employer incident to status; (e.g., H-1B, J-1, F-1, etc.) An alien who meets other requirements that are listed in the regulations

Appropriations Law Current Appropriations Laws prohibits an Agency from using appropriated funds to pay The compensation of any officer or employee of the Government of the United States whose post of duty is in the continental United States unless such person:

Appropriations Law is a citizen of the United States; is a person who is lawfully admitted for permanent residence and is seeking citizenship as outlined in 8 U.S.C. 1324b(a)(3)(B); is a person who is admitted as a refugee under 8 U.S.C. 1157 or is granted asylum under 8 U.S.C. 1158 and has filed a declaration of intention to become a lawful permanent resident and then a citizen when eligible; is a person who owes allegiance to the United States (for example, natives of American Samoa and Swains Island); is a person employed as an international broadcasters by the Broadcasting Board of Governors;

Appropriations Law is a person temporarily employed as a translators; is a person temporarily employed in the field of service (not to exceed 60 days) as a result of emergencies; is a nonresident aliens employed as wild-land firefighters for not more than 120 days by the Department of the Interior or the U.S. Department of Agriculture, U.S. Forest Service, pursuant to an agreement with another country; or is a person who was an officer or employee of the U.S. Government on December 16, 2009.

ARS-230 Name Check A name check is basically a security check Foreign nationals must complete and submit an electronic ARS-230 Foreign national cannot enter on duty until the ARS-230 has been approved

EMPLOYMENT DOCUMENTS

Employment Documents Foreign nationals will need to have one of the following documents to be employed: Visa Permanent Resident Card (Green Card) Employment Authorization Document (EAD) Form DS-2019

Visas Classification Group: Temporary Visitors Workers - H-1B, H-1C, H-2B - B-1, B-2 Crewman - D-1, D-2 Academic Students - F-1, F-2 Exchange Visitors - J-1, J-2 NAFTA - TN, TD, TWOV

Visas Visa utilized by the Agency: E-3 Australian Specialty Occupation Worker F-1 Academic Student H-1B Temporary Workers in Specialty Occupations J-1 Exchange Visitor TN Canadian and Mexican Professionals under NAFTA

Visas SPONSORED E-3 – Australian Specialty Occupation Worker NON-SPONSORED F-1 – Academic Student J-1 – Academic Student J-1 – Exchange Visitor H-1B – Temporary Worker in Specialty Occupations TN – Canadian and

Visas U.S. visa is issued by a U.S. Embassy or Consulate U.S. visa allows foreign national to travel to a U.S. port-of-entry and request permission to enter Can’t enter U.S. on expired visa U.S. visa does not guarantee entry to the U.S.

Permanent Resident Card (Green Card) Form I-551, “Permanent Resident Card”, is issued to all permanent residents as evidence of alien registration and their permanent status in the United States

Employment Authorization Document (EAD) Work permit Issued in one-year increments Can’t begin work until validity date Can’t work beyond expiration date F-1 student obtains EAD to be employed for OPT purposes

Form DS-2019 Certificate of Eligibility for Exchange Visitor (J-1) Status Employment document used to employ J-1 student for academic training purposes J-1 student must obtain authorization for academic training from school official Certificate contains a brief description of the student’s program; start and end date; etc.

ADMISSION TO THE UNITED STATES

Travel to the U.S. When arriving by air, flight attendants will distribute Customs Declaration Forms (CF-6059) and Arrival/Departure Record (I94) to each passenger which he/she must fill out prior to landing at a U.S. port-of-entry When arriving by land or sea, CBP Officer at the portof-entry will provide passengers with CF-6059 and I-94

U.S. Ports-of-Entry Ports-of-Entry include: Airports Sea Ports Land Border Crossings All persons arriving at a U.S. port-of-entry are subject to customs inspection by a Department of Homeland Security’s, U.S. Customs and Border Protection (CBP) Officer.

Customs Inspection During Customs Inspection, CBP Officer will: Review travel documents (e.g., passport, visa, customs declaration, Form I-94, etc.) Determine if the foreign national is eligible for entry Determine the foreign nationals period of stay in the U.S. Annotate foreign national’s Form I-94 with duration of stay

Form I-94 Arrival/Departure Record CBP Officer will annotate I-94 with: Date the foreign national arrived in the U.S. “Admitted Until” date that reflects the foreign national’s authorized period of stay Visa classification Foreign nationals that stay longer than the “Admitted Until” date are considered “Out-of-Status” Failure to maintain status can result in arrest and affect prospects of readmission

Excepted Service Appointments Postdoctoral Research Associates Pathways Student Interns Pathways Recent Graduates L/A’s

Positions Eligible for Employment Foreign nationals can be employed in the Following temporary, excepted service positions: Postdoctoral Research Associates Pathways Students Interns Pathways Recent Graduates L/As

Postdoctoral Research Associate To be employed as a postdoctoral research associate, foreign national must: Be eligible for Federal employment Possess a Ph.D. Have one of the following: Foreign nationals in J-1 visa status can be employed for academic training purposes with an endorsed DS-2019 form Foreign nationals in F-1 visa status can be employed for optional practical training purposes with an Employment Authorization Document (EAD) Foreign nationals in H-1B, E-3 and TN can be employed for temporary work purposes with a temporary worker visa

Pathways Student Intern To be employed as a student intern, the foreign national must: Be eligible for academic (J-1) or practical training (F-1) Attending school Have training approved by the designated school official Obtain the appropriate employment document (e.g., EAD or SF-2019)

Pathways Recent Graduate To be employed as a recent graduate, the foreign national must: Be eligible for federal employment Approved Obtains Serves for practical or academic training EAD on appointment limited to 1 year Obtains U.S. citizenship prior to conversion to TERM or permanent

L/A Appointments To be employed in an L/A position, the foreign national must: Be eligible for Federal employment Have an EAD

VISAS

H-1B Visa H-1B visa classification allows U.S. employers to temporarily employ foreign nationals in the U.S. on a nonimmigrant basis in a specialty occupation Specialty occupations require the theoretical and practical application of a body of highly specialized knowledge in professional fields and at least the attainment of a bachelors degree or its equivalent This temporary worker visa can be used to employ foreign nationals in postdoctoral research associate positions Foreign nationals must be eligible for federal employment

H-1B Visa H-1B visa may be issued in increments of up to 3 years for a maximum stay of 6 years The Agency petitions the USCIS for an H-1B visa on behalf of foreign national Agency obtains Form I-797, “Notice of Action” from USCIS Agency forwards Form I-797 to the foreign national

H-1B Visa Foreign national schedules an appointment with a U.S. Embassy or Consulate Obtains H-1B visa from U.S. Embassy or Consulate Travels to a U.S. port-of-entry and request permission to enter Compiles with conditions of status

E-3 Visa E-3 visa classification allows U.S. employers to temporarily employ Australian nationals in the U.S. on a nonimmigrant basis in a specialty occupation Specialty occupations require the theoretical and practical application of a body of highly specialized knowledge in professional fields and at least the attainment of a bachelors degree or its equivalent This temporary worker visa can be used to employ Australian nationals in postdoctoral research associate positions

E-3 Visa E-3 is similar to the H-1B visa with a few additional benefits (i.e., spouse may work in U.S.) Agency supplies offer letter Australian nationals are responsible for obtaining their initial E-3 visa 24-month initial validity period which can be extended indefinitely but not permanently

TN Visa The TN visa classification permits qualified Canadian and Mexican citizens to seek temporary entry into the U.S. to engage in business activities at a professional level Professional level requires evidence of professional qualifications in the form of degrees, certificates, diplomas, professional licenses, etc. and include positions such as lawyers, engineers, scientists

TN Visa This temporary worker visa can be used to employ Canadian and Mexican professionals in postdoctoral research associate positions TN status can be issued in increments not to exceed a three year period No limit on the number of times a person can apply for a TN visa

F-1 Visa This visa classification is a nonimmigrant, full-time, student visa that allows foreign nationals to pursue an education in the U.S. Students may be employed for practical training purposes while attending school or after completion of studies in the following excepted service positions: While Attending School Pathways Student Interns After Completion of Ph.D. Postdoctoral Research Associate Pathways Recent Graduates F-1 student obtains EAD

J-1 Visa This visa classification is for persons seeking entry into the U.S. to participate in an approved exchange visitor program for the purpose of teaching, lecturing, studying, observing, conducting research, consulting, demonstrating special skills or receiving training

J-1 Exchange Visitor Categories The J-1 visa is an exchange visitor visa with several categories that include: Student, college/university Specialist Short-term scholar International Visitor Trainee Government Visitor Teacher Camp Counselor Professor Au Pair Research Scholar

Academic Training for J-1 Student ARS may employ a J-1 student for academic training purposes Student may participate during his/her studies; or Commencing not later than 30 days after completion of his/her studies Student official obtains signed DS-2019 from school