Immigration Policy of New York Institute of Technology
The following shall serve as the Immigration Policy of New York Institute of Technology ("NYIT"):
I. GENERAL PROCEDURES FOR NONIMMIGRANT STATUS
Non-U.S. citizens may be interviewed for employment, but employment by NYIT requires that the candidate possess the appropriate work authorization. Accordingly, all offers of employment should be contingent upon receipt of the appropriate work authorization. Requests for immigration sponsorships will be reviewed following an offer of full-time employment. All immigration sponsorships by NYIT are to be reviewed and approved by Human Resources, the applicable Vice President, and, in the case of Academic departments, the applicable Dean with the assistance of NYIT's designated immigration counsel in determining the appropriate non-immigrant category.
a. Processing Costs for Temporary/Nonimmigrant Employment Authorization
The department which hires a foreign national will generally be expected to cover the costs of obtaining appropriate visas and/or work permits for a foreign national employee. All costs related to immigration services, filing fees and legal fees will be charged to the hiring department.
NYIT will pay all expenses and fees required by law to be paid by the employer for the NYIT-sponsored visa and/or work permit. For expenses and fees that the employer is permitted but not required to pay, NYIT may at its discretion cover these costs, by either directly paying or reimbursing all or a portion of the employee's and immediate family members' legal fees and government filing fees. For this purpose, immediate members of the family are spouse/partner and children.
Additional expenses for the employee or family members are the employee's responsibility (this includes travel expenses for family members, as well as any expense related to medical examinations and vaccinations, photographs, passports, passport extensions and obtaining various documents).
Employees should coordinate travel to obtain their visa and/or work permit stamps/documentation with other business and/or personal travel whenever possible.
NYIT may cover travel costs to obtain employment-based immigration stamps when there is an immediate business-related need or the employee's work status is at risk. Any expense reimbursed by NYIT should be coordinated in the most economical manner, in order to reduce the overall cost for NYIT. All expenses must be pre-approved by HR and the applicable VP prior to incurring an expense. This will be decided on a case by case basis.
NYIT will not directly pay or reimburse for the following:
- Employment Authorization Documents for spouses
- Non-employment related immigration sponsorship (such as a family-based petition based on marriage, familial relationship, etc.)
b. Commonly processed non-immigrant visa types for NYIT
- H-1B Status: Applicants must have specialized knowledge and at least a bachelor's degree. NYIT is exempt from the H-1B cap process; however, timing is key and should be coordinated with HR, the Dean, and immigration counsel.
- O-1 status: Reserved for applicants who have extraordinary ability or achievement.
- J-1 status: Generally, post-doc applicants.
- TN status: Non-immigrant classification generally for Canadian and Mexican citizens.
c. Premium Processing
Premium processing and associated fees for any and all cases will be based on business necessity only and not for personal reasons.
d. Maintenance of Nonimmigrant Status
Foreign national employees shall provide Human Resources and outside legal counsel with a copy of the Form I-94 (front and back) each time they and/or dependent family members are admitted to the U.S., including any return from international travel. The Form I-94 may be retrieved from the DHS website.
If the foreign national's employment with NYIT ends, NYIT will cease processing of all immigration matters and will withdraw all underlying nonimmigrant visa petitions as applicable and/or required.
II. GENERAL PROCEDURES FOR PERMANENT / IMMIGRANT STATUS
A request to support the employee's application for permanent resident/immigrant status will not be considered at the time of hire. The decision to support the employee's application for permanent resident status is generally made after employment with NYIT for at least four years, to ensure that NYIT has sufficient time to assess the employee's qualifications and long-term commitment to NYIT. Decisions will be made by the appropriate VP, in consultation with HR, and with the advisement of immigration counsel.
It is NYIT's practice to sponsor an application for Lawful Permanent Residence (LPR) status only when there is a valid business necessity.
The decision and procedure regarding a request for LPR sponsorship is very comprehensive. The decision is done on a case-by-case basis and the procedures vary depending upon the employee's background, employment history with NYIT and individual needs. NYIT will make the decision at its sole discretion, with approval of HR and the applicable VP. Criteria which will be considered, include the following:
- The foreign national has completed four years of continuous employment with NYIT in the U.S. (Exceptions may be made for those who are timing out of non-immigrant status)
- The foreign national's long-term career plan is with NYIT in the U.S. This involves a review of current and future possible positions with NYIT in the U.S.
- The foreign national's performance is consistently satisfactory
- The foreign national has current NYIT sponsorship for a temporary visa (e.g. H-1B) with immigrant intent
- The position that NYIT will use when applying for LPR status:
- The position can be either the foreign national's current or future slated position
- The foreign national should have met the minimum qualifications for the position identified at the time of original hire with NYIT in the U.S.
- Expectations regarding success and cost of the application. Note that the department will be charged for all costs incurred by NYIT for sponsoring the LPR.
In the event that NYIT decides to sponsor the application for LPR status, HR will initiate the process and provide the initial required documentation to immigration counsel.
a. Overview of Permanent Residency Sponsorship
LPR status is granted to foreign nationals that meet the requirements set forth by U.S. Immigration and Citizenship Services (USCIS). When an employer "sponsors" an employee for LPR status, it is considered to be based on a "permanent" job offer for the foreign national employee.
The employer-based LPR process is generally job specific. A change, such as in job responsibilities or location, while the process is underway may require NYIT to start the process over. An attempt will be made to take potential changes into consideration at the beginning of the process, but it is possible that unanticipated circumstances will arise.
Each individual case will require a preliminary assessment followed by an in-depth analysis by NYIT's immigration counsel. This process may take many months to complete, prior to starting the LPR process. The process of obtaining employer-based LPR is complex, lengthy and routinely takes many years.
The determination of EB-1, EB-2, and EB-3 status is based on facts and circumstances as aligned to USCIS requirements for each category. This will be considered as part of the overall preliminary case assessment and is not a decision that is made by the foreign national or NYIT. This is decided based on the guidelines and requirements of USCIS.
The permanent residency process typically goes through three stages; however, Stage One is omitted if the position and foreign national qualify under the EB-1 category:
- STAGE ONE: ETA Form 9089, Application for Permanent Employment Certification
- This is a prerequisite in most employer-based permanent residency petitions pursuant to U.S. Department of Labor (USDOL) rules. (Note: Exception is given to certain employees who are qualifying as an "EB-1, multinational manager/executive intracompany transferees.")
- The employer is required to test the U.S. labor market by posting the job description internally, on various websites and periodicals and by other means for a specified period of time. If a qualified and willing U.S. worker is not available, then an application is filed and is subject to audit by the USDOL.
- While testing the U.S. labor market as described above, it is possible that NYIT may identify a U.S. worker who is qualified and interested in accepting the position. If this occurs, then NYIT cannot file the application.
- As the sponsoring employer, NYIT is required to absorb all costs associated with the employment certification process. This includes legal fees paid by NYIT to its immigration counsel, government filing fees as well as expenses related to the recruiting process (i.e. posting the position, credential evaluation, translation of documents, etc.).
- STAGE TWO: Immigrant Petition for Alien Worker (I-140)
- This is a petition that is filed by NYIT with USCIS
- Premium processing and associated fees for any and all cases will be based on business necessity only and not for personal reasons.
- Premium processing will only be authorized if there is a concern of the foreign national timing out and jeopardizing status in the United States
- Though not required, NYIT may at its discretion absorb such costs for the employee's petition, limited to legal fees and government filing fees.
- Additional expenses for the employee or family members are considered the employee's expense (Note, if on expatriate status, the foreign national will be localized to the U.S. upon completion of this step.)
- STAGE THREE: Adjustment of Status (I-485 / "Green Card Application")
- This application is used to change (or "adjust") the temporary visa status to that of an LPR
- NYIT does NOT support this part of the process. Accordingly, foreign nationals may handle independently or have the option to engage NYIT's immigration counsel on a personal basis to support this process.
HR will review concurrent filing options for I-140 and I-485 petitions on a case-by-case basis with advisement of immigration counsel (as evaluated with the immigration attorney based on risk and timing elements).
When an individual transfers from another employer to NYIT, evaluation of priority date can only be done on a case-by-case basis. The foreign national must provide copies of the approved Labor Certification, I-140, all arrival/departure records, and any other documentation that will aid in reviewing possibilities and eligibility at NYIT.
b. Processing Costs
NYIT will support the costs of Stage One and, at its discretion, Stage Two as set forth above and/or as required by applicable law. NYIT will not directly pay or reimburse for the following:
- Additional costs if the employee chooses to consular process an immigrant visa in lieu of applying for adjustment of status
- Non-employment related immigration sponsorship (such as a family-based petition)
- Application or renewal of Employment Authorization Documents
c. Post Legal Permanent Residency Policy
- Reentry Permit: An employee who will be leaving the U.S. for an extended period must contact Human Resources in advance of departure for coordination with immigration counsel for the re-entry permit. Permanent Residents of the U.S. who will be traveling outside of the U.S. for any extended period (six months or more) may need some form of re-entry documentation to maintain permanent resident status or otherwise risk its loss due to abandonment. This typically comes in the form of a re-entry permit. NYIT will consider supporting the LPR employee and eligible dependents in obtaining reentry permits only where the LPR employee has been transferred to a NYIT location outside of the U.S. on a temporary basis.
- Conditional LPR Status: If the foreign national employee secured LPR status that is conditional, NYIT sponsorship of the removal of said conditions will be determined on a case by case basis following review of relevant factors and consultation with immigration counsel.
- Green Card Renewals: Filing the appropriate application for renewal of the foreign national's green card is the employee's responsibility and will not be supported by NYIT.
- Naturalization: Costs and fees associated with naturalization (U.S. citizenship) are considered a personal expense and will not be supported by NYIT.
III. TERMINATION OF EMPLOYMENT
Upon the employee's end of employment, NYIT will cease processing immigration matters and will withdraw institutional support for visas and/or work permits, as applicable.
a. Personal Counsel and Advisement
A foreign national employee being considered for LPR sponsorship may, at his or her own cost, seek advice from an immigration attorney to address personal circumstances in detail. NYIT's immigration counsel can only provide limited guidance, which is to avoid a potential conflict of interest.
Additionally, NYIT strongly encourages employees to seek guidance, at their own cost, from a tax advisor to address any income, gift or estate tax implications that might arise from becoming an LPR.
NYIT is an at-will-employer and sponsorship of an employee for LPR status does not change the employee's at-will status. This means that the employee's employment at NYIT may be terminated by the employee or NYIT at any time for any or no reason with or without cause or advance notice subject to any applicable collective bargaining agreement. Termination of employment would result in withdrawal of further sponsorship and termination of the temporary worker visa, thereby requiring the departure of the employee and any dependents from the United States.
V. PREVAILING LAW
Where there is a conflict between this policy and U.S. law, the applicable law will always prevail.
- The United States and Citizenship and Immigration Services (USCIS): A branch of the Department of Homeland Security that processes certain non-immigration and immigrant visa applications.
- The United States Department of Labor (DOL): The DOL processes Labor Condition Applications (LCA's) that are attestations required by employers seeking to sponsor H-1B non-immigrants. DOL also processes the ETA Form 9089, Application for Permanent Employment Certification, usually the first stage of most Permanent Residency cases. DOL's Wage and Hour Division has oversight over employers' wage requirements.
- Customs and Borders Protection (CBP): The CBP is a branch of the Department of Homeland Security that inspects the U.S. borders and U.S. ports-of-entry including U.S. International airports. CBP officers have the authority to grant or deny entry into the U.S. When granting a foreign national entry into the U.S. (except Canadian visitors), the CPB officer issues the foreign national(s) a Form I-94 arrival/departure card that evidences the foreign national's lawful status in the U.S. The Form I-94 arrival/departure card (not the passport visa page) governs whether the foreign national is lawfully present in the U.S.
- Temporary/Non-immigrant Employment Authorization: Foreign nationals who seek to enter the U.S. for a temporary stay are known as "non-immigrants". Most non-immigrant visa categories that provide work authorization limit employment to a specific job with a specific employer. In most cases, a person admitted in one of these visa categories will not have a photo identification card as evidence of work authorization. Instead, the work authorization is inherent in the visa status, which is shown on the Form I-94 Arrival Document given to a foreign upon entry to the U.S. or on a Form I-797 USCIS approval notice.
- Permanent/Immigrant Status: Foreign nationals who seek to reside in the U.S. on a permanent basis are known as "immigrants." A person who has been lawfully admitted as an immigrant is known as a "permanent resident." As evidence of this status, a permanent resident receives a photo identification card from the USCIS. This card is commonly called a "green card" even though these cards are no longer green. Similar cards are issued to "conditional residents" and "temporary residents." These cards authorize employment with any employer.
- Form I-140 (Immigrant Petition for Alien Worker): Form used to petition for an alien worker to become a permanent resident in the U.S. with USCIS.
- First Employment Based Preference Category ("EB-1): Priority Workers, including aliens of extraordinary ability, outstanding professors and researchers, and multinational managers and executives.
- Second Employment Based Preference Category ("EB-2"): Members of the professions holding an advanced degree or its equivalent, or a foreign national who has exceptional ability, or those requesting a National Interest Waiver.
- Third Employment Based Preference Category ("EB-3): Skilled workers (jobs requiring a minimum of two years training or experience; Professionals (persons whose job requires at least a U.S. baccalaureate or foreign equivalent degree and are a member of the professions; Other Workers (persons performing unskilled labor requiring less than two years training, education, or experience).
- Form I-485 (Adjustment of Status): The Adjustment of Status application form I-485 is a request made by the non-U.S. citizen for a green card or permanent resident status.
- Form I-797 (Notice of Action): A response letter issued by USCIS that covers anything from a Notice of Receipt, Notice of Transfer, Request of Additional Evidence, to notify the employee and the company if a certain benefit was approved
For the purpose of this document, it is important to note that the guidelines set forth by NYIT are based on current immigration laws as of the date of this policy. Future amendments may be incorporated as laws change.