Filing U.S. Permanent Resident Petitions
Created 12/2006, rev. 12/26/2006 07:38:21 AM

Overview

Auburn University will sponsor professional-level employees for US Permanent Residence if the employee is employed (or has been offered employment) in any full-time position considered to be permanent. The definition of “permanent” for the purpose of this policy is explained in detail below.

All permanent resident applications filed by Auburn University must be processed by, or directed by, the Office of International Education. Hiring departments may not prepare or sign immigration documents or applications for Labor Certification related to permanent resident petitions. Outside attorneys may not prepare or file applications or petitions on behalf of Auburn University unless previously approved by the AU General Counsel. Hiring departments may not pay for immigration-related work performed by outside attorneys, except when arranged through the Office of International Education and the AU General Counsel.

Permanent resident petitions will be processed based on an official request by the head or director of the department (or organizational unit) employing the employee, with approval by the college dean (if appropriate) and the Office of the Provost/VP for Academic Affairs or Office of the President.

The applications will be facilitated by the Office of International Education through the AU counsel for immigration support. All processing and legal fees associated with the application will be arranged for in writing with the hiring department and beneficiary prior to the initiation of any petition.

University departments may not make promises to any non-tenure track employee or prospective employee concerning sponsorship for permanent residence until the request for sponsorship has been approved by all required administrative offices (including the Office of the Provost/President).

NOTE: AUBURN UNIVERSITY RESERVES THE RIGHT TO ESTABLISH INTERNAL POLICIES AND PROCEDURES FOR THE SUBMISSION, ADJUSTMENT AND MODIFICATION OR WITHDRAWAL OF ANY EMPLOYER BASED PETITIONS AT ANY TIME.

Employees for Whom AU Will File Permanent Resident Petitions

A petition for permanent residence may be filed for an employee in a permanent, full-time professional position. “Professional” is defined to be any position which clearly requires a four-year Bachelor’s Degree or higher. “Permanent” is defined to be a tenure-track or tenured faculty position or any regular position that is expected to continue indefinitely, and in which the employee intends to remain indefinitely. "Visiting", "Acting", or "Interim" faculty positions do not meet the definition of permanent. [Note that Post-doctoral positions are not considered permanent.]

For persons employed as teaching faculty, the permanent resident application process should begin within eighteen months after the official job offer has been made. For all other positions (including research appointments), the conditions below must be satisfied before the University begins any paperwork related to a permanent resident petition.  For all AU sponsored LPR petitions, there must also be a commitment on the part of the faculty member employee to remain indefinitely at Auburn University.

1. The employee must normally be employed by Auburn University for a minimum of one year (12 months) before the University will sponsor him/her for permanent residence.
2. The hiring department must already have secured a minimum of three additional years of funding (after the Permanent Resident paperwork has begun) and must clearly demonstrate that continued funding beyond the three years is highly probable for an indefinite period.
3. Exceptions to the above requirements may be made only with approval of the Office of the Provost/VP for Academic Affairs.
4. After initial approval by the Office of the Provost/VP for Academic Affairs and after consultation with the employee and the hiring department, the Office of International Education will determine the most appropriate category of employment-based immigration to be used for the application. If the Office of International Education determines that the application is unlikely to be approved, it will not file any application and will not recommend that the application be referred to an attorney.

Whenever possible, the University will apply for a “Special Handling” Labor Certification for teaching positions, followed by a second preference immigration petition. For non-teaching positions, the Office of International Education may recommend either a second or third preference petition with Labor Certificate or a first preference petition for outstanding researcher. In most cases, only one application will be filed for an employee at one time. If a petition or application for Labor Certificate is unsuccessful, the sponsoring AU department and the Office of International Education may choose to file or recommend an application in another category. While the Office of International Education will use its best judgment in filing petitions, it does not guarantee approval of any application filed.

All costs related to the filing of permanent resident petitions filed by Auburn University must be paid by the hiring department and or the employee as appropriate within the pertinent regulations. The costs associated with an application for an immigrant visa or adjustment of status for the employee may be paid by the employee or the hiring department. The University may not pay any costs associated with applications filed by the dependents of the employee. If the services of an outside attorney are used, the hiring department and or employee will be responsible for paying all attorney fees.

The hiring department will be responsible for paying for all costs of advertising and recruitment, as required by U.S. labor law, as well as fees charged by the US Citizenship and Immigration Services for an immigrant petition (Form I-140), and fees (if any) charged by the US Department of Labor for an application for Labor Certification.

If an employee files an immigrant petition on his/her own behalf, Auburn University will not pay or reimburse the costs of the application.

Summary of Procedures for filing Permanent Resident Petitions

To initiate paperwork for a permanent resident petition, the hiring department or organizational unit will complete a request form, stating its intention to employ the employee on a permanent or indefinite basis and indicating how the employee meets the above criteria. The request form will be signed by department head and dean (if applicable) and forwarded to the Office of the Provost/VP for Academic Affairs with required documentation. If the request is approved, it will be forwarded to the Office of International Education.

A representative of OIE will then meet with the Head of the hiring department to make the final determination about filing the petition, discuss the best immigrant category to be used, the relevant requirements and procedures, the probabilities for approval, and to give an estimate of related costs.

Although the Office of International Education will advise the department to the best of its abilities before beginning an application, it does not guarantee approval of any application.

Based on the availability of OIE staff, in conjunction with AU legal counsel policy, a decision on the legal services used to process the petition and cost reimbursement procedures will be made in writing. (This determination will be made before the department makes the final decision to proceed.)

The hiring department will then provide more detailed information and documentation as requested by OIE or the attorney. If further advertising and recruitment is required, this will be arranged by the hiring department under the direction of OIE or the attorney.

The Office of Human Resources will also assist, as needed, in fulfilling Department of Labor recruiting requirements. When an application will be filed for a Labor Certification, paper and electronic notices must be posted for the information of other employees. Arrangements for these postings will be made by OIE, Human Resources, and the hiring department, coordinated by OIE.

Paper documentation related to the Labor Certification must be collected before the electronic application is filed, and kept by the employer for five years. This file will be assembled and kept by the Office of International Education.

A representative of the Office International Education, designated by the AU administration, will sign all documents related to applications for Labor Certification or immigrant petitions.  There will be no authorization of representation (G-28 form) by ANY attorney who has not been approved in ADVANCE by the AU general counsel for immigration purposes (currently Fisher & Phillips, LLP).

Employment-Based Preferences:

The Immigration and Nationality Act allows for 140,000 employment-based immigrant petitions to be approved each fiscal year. These 140,000 approvals are divided between five employment-based preference categories. OIE processes two types of permanent residency petitions: 

• Outstanding Professors and Researchers

AU faculty who hold-tenure track positions occasionally apply for permanent residence using the EB-1 category. The EB-1 category requires that the applicant be outstanding in his or her academic field and be permanently employed. The applicant bears the burden of proof to meet the standards applicable for the Outstanding Professor and Researcher designation.

• Members of the Professions Holding Advanced Degrees

AU faculty or staff who hold positions with teaching responsibilities generally apply for permanent residence using the second category listed above. This category requires that AU document that a fair search was conducted and that the most qualified individual was hired for the position. This category allows for special consideration by the Department of Labor because of the individual's teaching responsibilities. The application must be submitted within 18 months of the decision to hire.

Changes or modifications of employment – Waiting period

Any change in employment status during the application process (reduction of percentage of time, leave of absence, change in job title or duties, or termination) could result in withdrawal of the petition.

Once the final adjustment of status paperwork is submitted to USCIS, the faculty member's application is placed on a waiting list for that employment-based category and background security checks are also done. An individual's place on the waiting list is determined by the priority date assigned to his or her application. The priority date is the date on which either the labor certification or the I-140 was submitted to the USCIS.

The wait-time for final adjudication of the petition can last two years or longer. In addition, individuals born in certain countries may be affected by visa retrogression and the adjustment of status phase may run considerably longer. Each country of the world is allowed a certain number of immigrant visas for the US. Visa retrogression occurs when immigrant visas for a particular country are no longer available and the demand exceeds the supply of visas. Individuals must then wait until a visa number becomes current before the final adjustment of status to permanent resident can occur.

During the transition between H-1B status and permanent residency, the scholar and the department must work closely with OIE to ensure that the scholar maintains the correct visa status

Please check with OIE for up to date AU policies and procedures.

Additionally prospective petitioners may wish to check the USCIS web site for additional information on requirements and procedures using the following key words:

http://www.uscis.gov/portal/site/uscis

Green Card (LPR)

Immigration through Employment

Resources for New Immigrants

Citizenship and Naturalization

NOTE THAT ALL PROCEDURES AND REQUIREMENTS ARE SUBJECT TO CHANGE WITHOUT NOTICE. 

AUBURN UNIVERSITY RESERVES THE RIGHT TO ESTABLISH INTERNAL POLICIES AND PROCEDURES FOR THE SUBMISSION, ADJUSTMENT AND MODIFICATION OR WITHDRAWAL OF ANY EMPLOYER BASED PETITIONS AT ANY TIME.