Manual for Recruiting & Hiring Foreign Nationals H-1B and Permanent Residency Issues Fall 2012
Lisa Owen Office of International Programs International Legal Affairs Specialist 745-639 1
RECRUITMENT STEPS FOR FOREIGN NATIONALS IN FACULTY POSITIONS Draft job advertisement
Publish advertisesment in professional journal (print or on-line) for 30 days
Interview top applicants
Select best qualified applicant
Extend job offer
Notify International Legal Affairs Specialist if new hire is a foreign national
Request prevailing wage from Dept. of Labor (DOL) (*)
Wait 30 calendar days (if PR), WKU policy must work 1 YR before applying for PR
Submit petition for Labor Certification to DOL within 18 months of first advertisement
Prepare recruitment report
Post Public Notice for 10 business days (2 locations)
Review applications
Submit either I-129 petition (H-1B) or I-140 petition (PR)
A recruitment report is a list of all the candidates that applied for the position, a statement explaining whether or not they met the minimum qualifications of the position (why or why not) and the hiring committee’s decision making process in reaching the finalist for the position. Include all documents received from each candidate. *You may request a prevailing wage up to 6 months before WKU files for Labor Certification so you may do this step while advertising, if desired. 2
RECRUITMENT STEPS FOR FOREIGN NATIONALS IN STAFF POSITIONS
Draft job advertissement
Publish advertisement using 5 seperate recruitment methods
Review applications
Interview top applicants
Select best qualified applicant
Extend job offer
Prepare recruitment report
Notify International Legal Affairs Specialist if new hire is a foreign national
Request prevailing wage from DOL (*)
Wait 30 calendar days (if PR), WKU policy must work 120 days before applying for PR
Submit petition for Labor Certification to Dep. of Labor within 180 days of the first advertisement
Post Public Notice for 10 business days (2 locations)
Submit petition I-129 (H1B) or I-140 petition (PR)
*You may request a prevailing wage up to 6 months before WKU files for Labor Certification so you may do this step while advertising, if desired. 3
ADVERTISEMENT CONTENT REQUIREMENTS FOR FACULTY & STAFF POSITIONS 1. Name of the Employer 2. Indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity. 3. Direct applicants to send a resume and/or application (or other documents appropriate for the occupation) to the employer. 4. A description of the vacancy specific enough to apprise the U.S. workers of the job opportunity. 5. Although a wage rate need not be included in the ad, if one is included it must not contain a wage rate lower than the prevailing wage rate, nor a wage range whose lower bracket is less than the prevailing wage rate. 6. The ad must not contain any job requirements or duties which exceed the job requirements or duties which will be listed on ETA 9089 (PERM Labor Certification) 7. The ad must not contain wages or terms or conditions of employment that are less favorable than those offered to the alien. 69 Fed. Reg. 77326,77347: . . . lengthy, detailed advertisements are not required by the regulation. The regulation does not require employers to run advertisements enumerating every job duty, job requirement, and condition of employment; rather employers need only advise applicants of the job opportunity. As long as the employer can demonstrate a logical nexus between the advertisement and the position listed on the employer’s (labor certification) application, the employer will meet the requirements of apprising the applicants of the job opportunity.
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ADVERTISING FOR UNIVERSITY FACULTY POSITIONS BEST PRACTICES TO AVOID RE-RECRUITMENTS 20 Code of Federal Regulations § 656.18(b)(3) requires: A copy of at least one advertisement for the job opportunity placed in a national professional journal, giving the name and the date(s) of publication; and which states the job title, duties, and requirements for the position.
Department of Labor’s new interpretation of the Permanent Residency (P.R.) requirements for job advertisements: "Question: Is the employer permitted to use an electronic or web-based national professional journal instead of a print journal when conducting recruitment under 20 CFR 656.18, Optional special recruitment and documentation procedures for college and university teachers? Answer: Yes, an employer may use an electronic or web-based national professional journal to satisfy the provision found at 20 CFR 656.18(b)(3), which requires use of a national professional journal for advertisements for college or university teachers. The advertisement for the job opportunity for which certification is sought 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 webbased national professional journal must include evidence of the start and end dates of the advertisement placement and the text of the advertisement." (Posted: August 31, 2011; Revised: September 28, 2011) TO SUMMARIZE, THERE ARE 2 REQUIREMENTS FOR USING ELECTRONIC/ WEB BASED NATIONAL PROFESSIONAL JOURNAL POSTINGS: 1) Posting must be viewable for 30 calendar days. 2) You must document the start date and the end date of the advertisement with the text of the advertisement. (i.e., take a print screen of the advertisement on the first day and the last day.) We strongly recommend that you put a reminder on your calendar so you do not forget to make a print copy of the last day the advertisement will be posted. Please remember you are not required to use an electronic advertisement posting. You may continue to use a one-time, physical print ad in a publication of national circulation to satisfy the requirement of 20 CFR 656.18(b)(3).
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Considerations for the Recruitment Report ● It
is not sufficient to list as a lawful job related reason for rejection that the individual was “not qualified.” Reasons for a candidate’s rejection must be “with specificity.” See, Simmons Audio Video Etc., Inc. v. Aaron Tapia-Bonilla, 2010 PER-00167 (BALCA March 4, 2011) ● Keep
a log of all “communications" with all applicants. DOL audits are now requiring “all evidence that the employer contacted the applicants by phone (telephone logs) or by mail (copy of all letters or e-mails) regarding the job opportunity.” 20 CFR 656.10(e) & 20 CFR 656.10(f) ● A substantial
failure by the employer to provide required documentation will result in that application being denied under §656.24 and may result in a determination by the Certifying Officer pursuant to §656.24 to require the employer to conduct supervised recruitment under §656.21 in future filings of labor certification applications for up to 2 years. 20 CFR 656.20(b)
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REQUIRED PROCEDURES FOR RECRUITING STAFF POSITIONS THAT MIGHT BE FILLED BY A FOREIGN NATIONAL For all Staff positions you must complete a minimum of 5 different advertisement/recruitment processes. Numbers 1 -2 are MANDATORY for all staff positions; you must then select an additional three methods from those enumerated in 3. YOU MUST DOCUMENT ALL ADVERTISEMENTS AND SEND PROOF OF THE ADVERTISEMENTS TO THE INTERNATIONAL LEGAL AFFAIRS SPECIALIST WHEN RECRUITMENT IS COMPLETED. (Failure to keep proper documentation of the advertising methods used means the position must be re-recruited again! This is a responsibility of the hiring department.) 1. Place a job order with the state work force agency for a period of 30 days. This is currently an online process. The website address is http://www.e3.ky.gov under the heading Employment, select Post A Job. (If you have not previously used this site it will require you to register.) Please make a copy of the text of the online advertisement on the first and last day of the posting as proof of the posting. (The date should be printed automatically by your computer in the lower right hand courner.) 2. Place two print advertisements in two different (consecutive) Sundays in a paper of general circulation. If the job offer requires experience and an advanced degree, and would normally be advertised in a professional journal, an ad in a journal can substitute for one of the Sunday newspaper advertisements. You need to document this recruitment method by cutting out the two Sunday advertisements with the name and date of the publication. 3. Document at least 3 of the following options (with no duplication) as completed recruitment processes for the position: Employer website (http://www.wku.edu/Dept/Support/HR/AAAweb/employment.htm) Please contact Brittany Reber (x 5360) in Human Resources to have a staff position posted. Please document this recruiting method by taking a print screen of the advertisement including all text and the date. ●
Campus placement office -- Career Placement Center (http://www.wku.edu/career/employers/postajoblead.php) Please call Rebecca Tinker if you have any questions about posting a position on Top Jobs at x 3095. Documentation should include a printed copy of the advertisement text showing the website full text and date. ●
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Job fair -- Any job fair may be used. You need to document your participation in the job fair this can be from brochures advertising the fair or newspaper advertisements listing the employer as a participant. Alternatively, submit a letter or other proof of attendance by the sponsoring entity. WKU’s Career Placement Center periodically hosts job fairs. Please contact Rebecca Tinker (x3095) for further information. ●
Trade or professional publications -- Departments can recruit by placing an advertisement in appropriate newsletters or trade journals for the occupation. (This may be an on-line web page posting.) Print a copy of the printed page or web page with the full text, name of publication and date. ●
Job search website other than the employer’s -- Examples include but are not limited to Monster.com, CareerBuilder.com. Please print a copy of the actual posting on the site with full text and date as documentation.
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On-campus recruiting -- If departments recruit by going out to various campuses and conducting interviews, document this step by providing copies of the posting of that campus placement office noting the employer and the date they conducted interviews for the position.
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Private employment recruiting firm -- Documentation of this recruiting method may include the contract between the employer and the recruiting firm and copies of the advertisements placed by the firm.
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Local and ethnic newspaper -- This can be documents with a copy of the advertisement showing the full text, the name of the publication and the date.
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Radio and television advertisement -- Document this method of recruitment by providing the full text of the advertisement and confirmation by the radio or television station of when (date(s) and time(s)) the advertisement was presented. ●
Our Permanent Residency Labor Certification submission must be made within 180 days of the first public notice of the job opportunity, but, in reality, that timeframe is shortened by at least 40 days due to public notice posting (10 business days) and the waiting period (30 calendar days). Consequently, it is best to start all recruiting efforts close to the same time so that they are completed and applicants interviewed timely. We can only sponsor a staff position for permanent residence if there were no other minimally qualified U.S. worker applicants in the recruitment pool of candidates.
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COMMON PROBLEMS WITH RECRUITMENTS ● When there is a high likelihood that the position might be filled by a foreign national, request the International Legal Affairs Specialist file for a prevailing wage determination as early as possible. Verifying prevailing wages in advance can prevent later issues with timing. (Remember for staff positions we only have 180 days, but requesting a prevailing wage does not start the 180 day clock.) ● All “Desired” or “Preferred” job qualifications in an advertisement become mandatory under Department of Labor regulations. If our foreign national does not have those qualifications, we cannot petition for permanent residency. ● All job descriptions should be normal qualifications for the job. Job descriptions cannot be “unduly restricted” or otherwise tailored to the foreign national’s curriculum vita. ● Any required experience for the position must not be experience that our foreign national has solely from previously working at WKU. (i.e. The student worked as a Graduate Assistant (GA) or Occupational Practical Training (OPT) worker in the position, prior to being hired as a full time employee. Then we attempt to count the 1 year experience as a GA or OPT worker as the 1 year prior experience required by the job description.) ● We must make sure we retain evidence of all advertisement postings. If we don’t have evidence of each of the 5 recruitment steps, we cannot use that recruitment to petition for permanent residency for our employee. ● Failing to advertise in 5 separate advertisements as required by Department of Labor regulations. ● There is a minimally qualified U.S. worker in the applicant pool. If there is even 1 U.S. worker who applies who meets the minimum qualifications for the position we cannot use that recruitment to petition for permanent residency for the foreign national. ● Running out of time for the process. Timing is crucial for hiring international staff position. Contact the International Legal Affairs Specialist as soon as you are aware that a position has been offered and accepted by a foreign national. It is WKU policy that all staff members must wait 120 days before applying for sponsorship for permanent residency. We only have 180 days from the first published advertisement to file for Labor Certification, if we fail to meet this deadline we will need to re-recruit for the position. 9
PREVAILING WAGE DETERMINATIONS •
The Department of Labor (DOL) regulates the employment of foreign nationals in the U.S. DOL’s objective is to ensure U.S. workers are not deprived of job opportunities in favor of foreign workers, and to ensure that employers do not pay foreign workers wages below market rates.
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In order to sponsor a foreign national for permanent residency, the employer must first obtain a prevailing wage determination. Requesting a prevailing wage is free and can be done up to 6 months before the intended employment.
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The employer submits a request for a prevailing wage determination to the Department of Labor using an on-line questionnaire. All occupations are assigned a classification code, for which there is a corresponding wage scale consisting of 4 wage levels, as determined by the DOL statistical information.
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You may review potential occupational codes and their corresponding prevailing wage levels at http://icert.doleta.gov. On the right hand side select Kentucky for state, select the most recent year for term, select ACWIA Higher Education, for area select Warren County, and then toggle down to look at various occupational titles.
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The employer can suggest a job classification, but the DOL can reject the suggestion and assign the classification it believes most appropriate.
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To proceed with the H-1B or permanent residency petition, the employer must agree to pay the employee the prevailing wage or the actual wage, whichever is higher.
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