Permanent Residency

Which Foreign National Employees Qualify for Sponsorship

• UD usually sponsors only full-time, regular employees in certain academic positions for PR in the U.S. “Regular” positions are those which are full-time and either tenured or, if not tenured, having no fixed date of termination.

• UD will not sponsor staff who are in non-academic positions, unless a special case can be made for an exception to this policy.

• U.S. immigration laws do not permit UD to sponsor part-time or temporary employees for PR (including but not limited to Post-Doctoral Researchers).

• However, Post-Doctoral Researchers and others whose work may be in “the national interest” but who are not otherwise eligible for UD sponsorship can obtain a complimentary 30 minute consultation with Goldblum & Pollins regarding potential self-sponsorship.

• If UD is able to sponsor a nonimmigrant employee for PR, CGPS will authorize the University’s outside immigration counsel to initiate one.

• A UD-sponsored immigrant application cannot be initiated without CGPS authorization.

Employees in Academic Positions

• Per above, UD usually sponsors only full-time, regular employees in certain academic positions for PR in the U.S. “Regular” positions are those which are full-time and either tenured or having no fixed date of termination.

• The hiring Department must complete the UD Permanent Residency (PR) Initial Review Form, and submit it to CGPS, Scholar Services at oiss-scholars@udel.edu together with a copy of the signed offer letter, UD Jobs advertisement, and the individual’s CV.

Employees in Non-Academic Positions

• Per above, UD will not sponsor staff who are in non-academic positions, unless a special case can be made for an exception to this policy.

• The hiring Department must complete the UD Permanent Residency (PR) Initial Review Form and Immigration Policy Waiver Application, and submit both to CGPS together with the official job description from Class & Compensation and the individual’s resume.

University sponsorship for permanent resident status does not guarantee attainment of this benefit until final approval of U.S. Citizenship & Immigration Services or the U.S. Department of State.

UD will use the most appropriate of the four procedures below to obtain PR for a qualified employee.

Outstanding Professor/Researcher

• Approval of an outstanding professor/researcher petition can be obtained if UD can demonstrate that a sponsored employee has a qualifying teaching or research position and an exceptional record of scholarly achievement in his or her field.

• More than 3 years of postdoctoral teaching and/or research experience, first-authored publications in high-impact journals, presentations at selective academic symposia, peer review experience for respected journals, and testimonial letters from recognized experts in the field are usually required to obtain approval of an outstanding professor/researcher petition.

Labor Certification for Qualifying Teaching Positions

• UD can apply to the Department of Labor (DOL) for labor certification under optional special recruitment and documentation rules for a position requiring some classroom teaching.

• Under special recruitment rules UD is not required to demonstrate that there were no qualified U.S. workers available for the position, but rather that the appointee was the best qualified applicant. UD can usually meet this requirement by presenting to the DOL the details of the UD departmental recruitment process that led to the faculty appointment.

• The special recruitment application must be submitted to DOL within eighteen months of the sponsored employee's selection for the position, which is the date the offer was extended to the employee (not the position start date).

• The DOL requires evidence documenting one print advertisement in a national professional journal and all other recruitment used in the search. Failure to retain advertising and search-related documents can significantly delay the sponsorship process.

• This process usually takes between 1 and 3 years to attain the green card; temporary employment authorization for the employee and spouse may be available within 18 months of starting the process.

• For individuals born in China or India this process may take significantly longer; however, if married to an individual from a country not subject to immigrant visa retrogression, an alternative timeline may be available (“cross-chargeability”).

Labor Certification for Advanced Degree Holders

• UD must demonstrate that it pursued recruitment in sources designated by DOL, and after such recruitment there are no minimally qualified and willing U.S. workers available for the position in question.

• It is critical for the Department to identify hard-to-find skills and the qualities that make the position difficult to fill in advance of advertising, using the Immigration Policy Waiver Application.

• UD also must meet DOL wage requirements in order to obtain an approved labor certification.

• Once prevailing wage requirements are met, most UD applications for labor certification in the academic job categories succeed, since the positions in question generally require high levels of education, hard-to-find skills and highly specialized experience in short supply in the domestic labor pool.

• This process usually takes between 1 and 3 years to attain the green card; temporary employment authorization for the employee and spouse may be available within 18 months of starting the process.

• For individuals born in China or India this process may take significantly longer; however, if married to an individual from a country not subject to immigrant visa retrogression, an alternative timeline may be available (“cross-chargeability”). Depending on the person’s country of birth, this process may take significantly longer.

National Interest Waiver

• This path allows UD or the employee (if self-sponsored) to waive the requirement of a labor certification as a prerequisite for sponsorship if the proposed work is “in the national interest.”

• The provision can apply both to foreign nationals of exceptional ability and to members of the professions holding advanced degrees (or the equivalent).

• To obtain a national interest waiver it must be demonstrated that:

  • The foreign national’s proposed endeavor has both substantial merit and national importance;

  • The foreign national is well positioned to advance the proposed endeavor; and

  • On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

• This process usually takes between 1 – 2 years or more to attain the green card; temporary employment authorization for the employee and spouse may be available within 18 months of starting the process.

• For individuals born in China or India this process may take significantly longer; however, if married to an individual from a country not subject to immigrant visa retrogression, an alternative timeline may be available (“cross-chargeability”). Depending on the person’s country of birth, this process may take substantially longer.

• This process may also be available for UD employees who are not eligible for UD sponsorship, e.g., post-doctoral appointments and similar temporary positions, because it permits a foreign national to “self-sponsor.” To explore whether you may be able to pursue a NIW based on self-sponsorship, contact UD’s outside immigration counsel for a consultation.

Government processing times vary by process, Service Center, and throughout the fiscal year. You can find the most recently-reported processing times by Form and Service Center at the links below.

U.S. Department of Labor

U.S. Citizenship & Immigration Services

*For legal fees paid by UD departments, please work with CGPS to obtain billing details and a confirmation of the final fee schedule.

In employment-based immigration petitions, the employer is the petitioner. The foreign national is the intended beneficiary. It is the University that is actually filing the petition with the federal government. The University therefore must ensure that its filings are accurate and consistent with internal policies and procedures. The University of Delaware strongly encourages Foreign National Employees also to take advantage of services (and reduced fees) for the corresponding I-485 Application for Permanent Resident Status.

No. A foreign national is not authorized to represent UD in legal matters. All employer-sponsored immigration petitions must be prepared and filed by either CGPS or outside immigration counsel.

PR

The Office of General Counsel will cover the legal fees and any costs associated with the Labor Certification Application, as the University is required by federal regulations to bear these costs. Either the Foreign National or the hiring department will be responsible to cover the I-140 and I-485 legal and filing fees.

In the event a Request for Evidence were to be issued at any step of the PR process, UD will evaluate on a case by case basis and make a determination on who should pay the associated costs.

As of December 2, 2019 CGPS covers FedEx shipping costs between UD and Goldblum and Pollins.

O-1

Since the petition belongs to the employer, it is encouraged that the hiring department would pay for the legal and filing fees for O-1 petitions. However, in the absence of federal regulations governing the O-1 fees, the fees may be passed onto the foreign national employee if there is mutual agreement prior to commencing the O-1 employment.

No. The University may not require the foreign national employee to assume or share in the costs associated with preparing and filing employer-sponsored immigration petitions for several reasons.

First, when an employer files certain permanent resident petitions it assumes certain obligations including the payment of a certain wage. Federal regulations strictly prohibit the University from deducting from a foreign national's salary its business expenses (including legal fees or costs) associated with filing the petition.

Second, legal fees and costs associated with the immigration petitions are a normal and routine part of the recruitment and retention process, just like relocation reimbursement, assistance in finding employment for traveling partners, or costs associated with starting a lab/research program/office. Finally, it is important for the University to establish the primary attorney-client relationship by assuming full responsibility for the legal fees and costs. The department must bear the legal and costs and may not be reimbursed.

No. You cannot treat foreign nationals less favorably than similarly situated U.S. citizens or permanent residents. Foreign nationals are entitled to the same benefits and conditions of employment that the University provides to their colleagues employed in the same or similar capacities. It is inappropriate to deduct the employer's costs associated with its immigration petition from funds that the employee is otherwise entitled to receive or is normally given. Reduction of benefits or negatively altering working conditions can lead to allegations of discriminatory or unfair treatment.