Step 3a: Foreign Applicants

The Immigration Reform and Control Act of 1986 (IRCA) requires employers to verify the eligibility to work for each person hired, thus screening out those who cannot legally work.  Applicants must complete an employment verification form (I-9) and provide documentation confirming their identity and their eligibility to work within three days of the date of hire.

Discrimination in employment against any person based on national origin or citizenship is illegal.  Therefore, exercise caution when phrasing applicant questions regarding national origin or citizenship.  You may ask whether the applicant is prevented from lawfully becoming employed in the United States because of visa or immigration status.  You cannot ask about or require proof of citizenship, as it would tend to reveal the applicant's ancestry or national origin.  (Proof of employment eligibility is secured after hire.)  Inquiries about an applicant's communication skills must be based on job requirements.

Because immigration laws are very complex, assistance from on- and possibly off-campus sources may be necessary.  Everyone involved in a search committee should understand the following terminology:

Alien:  Any person not a citizen or national of the United States.

Nonimmigrant:  Aliens who are admitted to the country for a specific purpose and for a temporary time.

Immigrant:  Aliens who are admitted to the country and have permission to remain indefinitely.

Visa:  Technically, a stamp placed on a passport.  The status of an alien is generally based on the visa he or she holds.  Visas with numbers preceded by a letter (F-1, J-1, H-1, etc.) are nonimmigrant visas.

Work status:  Determined by law and immigration regulations, this reflects the work restrictions, if any, which apply to visa holders.  Generally, those with an immigrant visa have few restrictions imposed on them.  On the other hand, unless exceptions and adjustments are made, specific restrictions apply to nonimmigrants.

Form I-94:  The "Arrival and Departure Record" indicates the current legal status of nonimmigrants and will be stamped "Employment authorized" if such is the case.

Form I-151 or I-551:  This is the "Alien Registration Receipt Card" (permanent resident card or "green card"), which identifies the alien as a permanent resident or immigrant.

Immigrant Visa Categories:  The United States divides the numerous immigrant visas into six preference categories:

First Preference -- Unmarried sons and daughters of United States citizens.
Second Preference -- Spouses and unmarried sons & unmarried daughters of permanent residents.
Third Preference -- Professionals, scientists, and certain artists.
Fourth Preference -- Married sons and married daughters of United States citizens.
Fifth Preference -- Brothers and sisters of United States citizens.
Sixth Preference -- Persons coming to the United States to perform skilled and unskilled labor.

Each of the six preferences is allotted a percentage of the total visas issued.

Labor Certification:  This is an established process that allows a U.S. employer to legally employ aliens who fall into preferences three and six.  The foundation of this process is being able to show (1) that the alien is of exceptional skill and ability, (2) that a legitimate, good-faith effort has been made to recruit within the United States for the position, and (3) recruitment efforts have not been productive.  This process is multifaceted.


Processes for Recruitment of Foreign Workers
Shared Immigration Service Center
February 2008

The federal Department of Labor (DOL) has two separate procedures for documenting recruitment of foreign workers – one that applies only to teaching faculty positions and one that applies to all other foreign national workers.  These procedures are only required if a foreign national worker has been hired and the employer wishes to assure long term employment by sponsoring the successful applicant for permanent residence.  It does NOT apply to recruitments where a US citizen or Permanent Resident has been hired.  The following is a brief summary of the requirements as of the current US DOL regulations.

Teaching Faculty Positions

US DOL recruitment requirements for faculty positions are designed to allow universities to select the most qualified candidate from the applicant pool without regard for race, nationality, or immigration status with USCIS.  Universities are allowed quite a bit of flexibility in this process, but must document each step and show that a competitive search has been completed.

Placement of Advertisement
Advertisement for the position must include at least one printed advertisement in a national professional journal.  Placement and sources used in other advertisements is at the discretion of the hiring authority and/or search committee as appropriate.

Time Requirements for Advertisement
The regulations do not list a specific time that the position needs to remain open.  However, a time period of less than one month during which application materials would be accepted may indicate to the US DOL that the search was less than “competitive.”

Documentation of Search
The search documentation must include a statement signed by the hiring authority and search committee chair outlining in detail the complete recruitment process including the total number of applicants, the specific lawful job-related reasons why the alien is more qualified than each of the US workers, copy of the ads and information about where they were placed, and evidence of all other recruitment sources utilized.  Additional items documented include a copy of the letter of offer after all signatures, copies of internal documentation authorizing the recruitment and confirming the hire (maintained on YourFuture), and evidence of the successful applicant’s education and experience.

Adherence to Prevailing Wage Determination
If the recruitment is to be used for an application for permanent residence by a foreign worker, a Prevailing Wage Determination request must be submitted to the South Dakota Department of Labor (State Workforce Agency) by the Shared Immigration Service Center.  The job offer must be at least 100% of the Prevailing Wage as determined by the State Workforce Agency.

Notification to Local COHE Representative
A letter is prepared by the shared Immigration Service Center to notify the local COHE representative of the pending employment of a foreign tenure-track faculty member.  This notification must include the US DOL regulations, the Prevailing Wage Determination information, and the mailing address for the US DOL.

Time Limit for Filing
The time limit for documenting this process is 18 months from the time the offer of employment was accepted by the foreign worker.  This includes completion of the electronic ETZ form 9089 by the Shared Immigration Service Center.  If this deadline is not met, the recruitment must be done again.

Special Terms & Conditions on Contract
The following wording shall be included in the Special Terms & Conditions section of the PAF so that it will be included in the letter of offer for the Foreign National candidate:

This offer is contingent upon your ability to obtain and maintain appropriate authorization from the US Citizenship and Immigration Service (USCIS).”

Non-Teaching Positions

US DOL recruitment requirements for non-faculty positions are designed to protect the employment of US workers, even if they are less qualified than foreign national candidates in the applicant pool.  These regulations apply to all non-teaching positions – researchers, technicians, and administrators.  Employers must follow a set process that may be different from the usual university procedures, particularly in the time the position remains open and the places where the ad is required to be posted.

US DOL Ad Requirements
The ad must include the name of the employer, direct applicants to report or send application materials to the employer, provide a description of the vacancy, indicate the geographic area of employment, not contain a wage lower than the prevailing wage rate, not contain any job requirements or duties which exceed the job requirements, not contain terms and conditions of employment that are less favorable than those offered to the alien, and allow applicants 30 days in which to submit application materials.  All of these ad requirements are met as a standard for SD BOR university recruitment with the exception of the period of time the job must remain open for the submission of application materials.   This time period is typically shorter than the US DOL requirement for technical and support positions.

Placement of Advertisements
The ad must be placed with the State Workforce Agency and in print at least two times in the local newspaper in the edition with widest circulstion or professional journals.  The job must also be advertised in at least three of the following sites:  1) job fairs, 2) employer’s web site, 3) job search web site other than the employer’s, 4) on-campus recruitment, 5) trade or professional organizations, 6) private employment firms, 7) employee referral program with incentives, 8) campus placement offices, 9) local and ethnic newspapers, or 10) radio and television ads.  SD BOR university recruitment procedures usually include items 2, 4, 8, and 9.  In addition, our state Workforce agency frequently includes university listings in their radio ads.

Recruitment and Selection Process – No US Workers Available
The recruitment process can only be documented and used for an application for permanent residence based on the foreign worker’s employment if there are NO US workers or Permanent Residents who meet the minimum qualifications and are willing to accept the position.  If the foreign worker is determined to be the most qualified applicant, the hiring authority may proceed with the hire.  However, they must understand that the foreign worker will not be able to apply for permanent residence based on this recruitment.  Therefore, the employment will either be temporary (for the duration that the foreign worker is able to obtain temporary work authorization from USCIS) or that another recruitment process will need to be completed at a future date.

Adherence to Prevailing Wage Determination
If the recruitment is to be used for an application for permanent residence by a foreign worker, a Prevailing Wage Determination request must be submitted to the South Dakota Department of Labor (State Workforce Agency) by the Shared Immigration Service Center.  The job offer must be at least 100% of the Prevailing Wage as determined by the State Workforce Agency.

Notification to Workers
Two postings are prepared by the Shared Immigration Service Center to notify local workers of the pending employment of a foreign employee.  These postings are forwarded to the university and must be placed in “two prominent, unobstructed” locations (usually the university HR and hiring department bulletin boards) for a period of at least 10 working days.  This notification must include the US DOL regulations, the Prevailing Wage Determination information, nad the mailing address for US DOL.

Documentation of Recruitment Process
Recruitment documentation must include a statement signed by the hiring authority outlining in detail the complete recruitment process including the total number of applicants, the specific lawful job-related reasons why the US applicants did not qualify and/or were not willing to accept the position, copy of the ads and information about where they were placed, and evidence of all other recruitment sources utilized.  Additional items documented include a copy of the letter of offer after all signatures, copies of internal documentation authorizing the recruitment and confirming the hire, and evidence of the successful applicant’s education and experience.

Time Limit for Filing
The time limit for documenting this process is 180 days from the date the first ad was placed.  This includes completion of the electronic ETA form 9089 by the Shared Immigration Service Center.  If this deadline is not met, the recruitment process must be repeated.  This deadline is difficult to meet for research and administrative positions where a more extensive search and screen process is desired by the university and the hiring manager.  If the deadline is not net, a second, more limited recruitment may be done as long as all of the basic US DOL requirements listed above are met.

Special Terms & Conditions on Contract
The following wording shall be included in the Special Terms & Conditions section of the PAF so that it will be included in the letter of offer for the Foreign National candidate:

This offer is contingent upon your ability to obtain and maintain appropriate authorization from the US Citizenship and Immigration Service (USCIS).”