International Student and Scholar Services

Permanent Residency Guidelines

Guidelines for Sponsoring Foreign Nationals for Permanent Residence

These guidelines should be used in conjunction with PPM 4670. The guidelines explain the purpose and processes of sponsoring foreign nationals for employment-based permanent residency. This policy applies to current and prospective employees (excluding student workers or graduate assistants).

These guidelines were developed in partnership with International Student and Scholar Services (ISSS) and Human Resources (HR).

Process for Sponsorship Requests

Department completes Request to Petition for Employment Based Legal Permanent Residency.

  1. Department submits this form and employee’s most recent CV to ISSS.
    1. CV should reflect all education and work experiences, including student employment. Time gaps in education and work experiences should be identified and explained.
    2. CV should include beginning and end dates (month and year) for all education and work experiences.
  2. Department submits CV to Export Controls Compliance Officer at exportcontrols@ksu.edu for Restricted Party Screening (RPS). This action ensures compliance with federal export control regulations.
  3. Export Controls Compliance Officer notifies ISSS of RPS results. If applicant is found on a restricted list, the permanent residence process may be impacted.
  4. ISSS consults with Human Resources (HR) to confirm labor certification eligibility requirements (see below) have been met (for faculty/special labor certification) or are likely to be met (for regular labor certification). If requirements have not been met, ISSS consults with Outside Immigration Counsel to determine next steps.

Eligibility Requirements for Employees with Teaching Responsibilities (Special Procedures)

The special procedures for faculty cases require the employer to demonstrate it has selected the candidate by means of a competitive recruitment process through which the foreign national was determined to be better qualified than any US worker applicant interested and available for the position. 

To qualify for special procedures the following criteria must be met.

  1. The Department must have placed either (1) a print ad (e.g., in the “Chronicle of Higher Education” or in a national professional journal); or (2) an electronic advertisement associated with a national professional journal as part of the recruitment process leading to the hiring of the foreign national employee.  Note the following important information:
    1. The Board of Alien Labor Certification Appeals (BALCA) has held that an employer may not advertise preferences in recruitment used for faculty /special labor certification cases.  Any preferred requirements listed in an advertisement will be deemed the minimum requirements.  Therefore, if a foreign national is selected, we will have to prove that the individual meets all advertised requirements, including preferences.
    2. Association websites are likely to be less problematic if the association also publishes a separate professional journal but the DOL could potentially find association websites to be unacceptable. Electronic recruitment often instructs applicants to apply online and, in so doing, may neglect to list the city and state where the job is located.  The regulations require that advertisements specify the location of the job, including the city and state. At this time, HigherEdJobs.com is an acceptable job advertisement channel.
    3. The electronic or web-based journal’s job listings must be viewable to the public without payment of subscription and/or membership charges.
    4. If not also appearing in print, an electronic posting for the job opportunity must be posted for at least 30 calendar days on the journal’s website.  Documentation of the placement of an advertisement in an electronic or web-based national professional journal must include evidence of the start and end dates of the advertisement placement and the text of the advertisement.
  2. The labor certification must be filed within 18 months of the date the employee was selected for the position.  Please note that if there is no clear evidence of an earlier selection date, the Department of Labor relies on the date on the offer letter. To meet the filing deadlines, the employee and Department should initiate a case no later than 9 months after the date the faculty member was first offered the job. If the 18-month filing deadline was missed, please consult with ISSS.

Eligibility Requirements for Employees Without Teaching Responsibilities (Standard Procedures)

The standard procedures require the employer to demonstrate that the position is hard to fill because the employer has not been able to find a U.S. worker who is available and willing to accept the position on the same terms and conditions as offered to the foreign national employee.

The decision to sponsor an employee for a non-faculty labor certification case is to be made at the Departmental level. The department head/hiring manager must coordinate with Kansas State University’s outside immigration counsel to initiate necessary recruitment steps.

To qualify for standard sponsorship procedures, we must ensure the following:

 

  1. Availability of US workers – The qualifications of the foreign national employee will be reviewed against the qualifications of any U.S. worker applicants. In order to file the Labor Certification case, the search committee must determine that based on the selection criteria, there are no qualified U.S. worker applicants available and willing to accept the terms and conditions of the position.   
  2. Consistent and specific recruitment process – If a new recruitment is initiated, outside immigration counsel communicates recruitment instructions, which will include confirmation of the minimum qualifications and where the position is required to be advertised.
  3. An updated position description (PD) – An updated PD for the role must be submitted via PageUp for the HR Compensation and Organizational Effectiveness team to ensure accurate classification.
    1. This step is not necessary if it's a faculty or instructor position.
    2. The minimum qualifications must be those required to successfully perform the duties and responsibilities and should be in alignment with K-State’s position structure for staff positions. Minimum qualifications may not be tailored to the desired foreign worker’s qualifications or be unduly restrictive. HR Compensation & Organizational Effectiveness can assist in articulating appropriate minimum qualifications in collaboration with outside immigration counsel.
      1. The advertisement text for the labor certification case may only list minimum requirements (not preferred).
  4. Oversight of the requisition – HR Talent Acquisition will review the requisition for the following:
    1. A complete requisition and position announcement includes job responsibilities/duties and qualifications (minimum, preferred, and other requirements).
      1. If the requisition is for a staff position, the responsibilities/duties and qualifications should mirror those indicated on the position description. Faculty positions do not require a position description.
      2. Consult with your Talent Acquisition Strategic Partner regarding the required advertising requirements provided per outside immigration counsel. The hiring department is responsible for any additional advertising fees outside of K-State’s standard advertising resources.
    2. A consistent search process - The search committee reviews all applicants and ensure that the applicants who are advanced in the search process meet the minimum qualifications.

These guidelines have been approved by Human Resources, with input from International Student and Scholar Services and outside immigration counsel.  Other universities or employers may have different criteria; however, we believe these guidelines are most consistent with the university’s internal hiring practices and policies.

 

8/18/2023