December 18, 2014

Employment-Based Hiring and Sponsorship Of Visas For Foreign Nationals

Marine Biological Laboratory
Policy No. G.1.14

Human Resources

Initiated by:Human Resources Coordinator
Approved by:MBL Director/CEO
Date:February 19, 2004
Revision:  #1, February, 2011
Distribution:MBL PI’s and Supervisors

1.0 Policy Statement:
This Policy is written to establish the Marine Biological Laboratory’s position and communicate its policy regarding the hiring, reassignment or appointment of foreign nationals for employment purposes, sponsorship of permanent and temporary residency and responsibility for associated governmental, consular and/or legal fees and processes.

The Marine Biological Laboratory is committed to employing only United States citizens and foreign nationals who are legally authorized to work in the United States. Non-residents of the United States are only able to take up employment at the MBL with a valid visa authorizing employment issued by the appropriate U. S. governmental branch. The MBL does not unlawfully discriminate on the basis of citizenship or national origin.

In certain cases, the MBL may provide sponsorship and/or financial support for a foreign national to petition for the appropriate employment-based visa. The Human Resources Office will oversee the petition process for all employment-based visas (temporary and permanent).

2.0 Application for Sponsorship Process
Whenever a foreign national is seriously considered for employment and/or visa sponsorship by a department, the department must consult with the Human Resources Office. Before consulting with Human Resources on a foreign national candidate or proposed visa sponsorship, the managing supervisor should gather and forward to the Human Resources Office the following:

2.1 Foreign National Appointment Authorization Form. The Foreign National Appointment Authorization Form requires the approvals of the following:

2.1.1MBL Department Head/Host
2.1.2Director of Human Resources
2.1.3Human Resources may route the Foreign National Appointment Authorization for additional approvals, including the MBL Director and/or the Chief Academic and Scientific Officer.

2.2 A “Statement of Justification” written by the managing supervisor supporting the hire or proposed visa sponsorship of the foreign national; the statement should be an articulation of the specific benefit to be gained by the MBL by sponsoring the foreign national’s visa petition (i.e., provide an understanding of the technical skills, experience, education, expertise that the foreign national will contribute in an exceptional manner to the MBL’s interests).

2.3 A current copy of the foreign national’s CV

2.4 An updated job description, including minimum required levels of education and experience.

3.0 Classification Determination

3.1 The Human Resources Office will determine the visa classification based on the individual’s position, past immigration status and history, appropriateness of the visa classification, and/or other government agency regulations that may affect the visa status eligibility.
3.2 The Human Resources Office will advise the department in writing of its determination of the foreign national’s visa status eligibility.
3.3 Immigration restrictions are subject to change through legislation, regulation, and interpretation. Hiring foreign nationals and bringing them to the MBL in a timely manner requires specialized attention and advice. Occasionally sponsorship of a particular individual is not possible, or an employment/appointment start date must be delayed. Staff members are urged to contact the Human Resources Office well in advance of the expected arrival of any foreign national.

4.0 Visas for Temporary Work in the U.S.
Some non-immigrant visa categories allow a person to work for a specific sponsoring employer in the United States for a limited period of time. The following visa categories are usual to foreign nationals working temporarily at the MBL:

  • H Visa for Professional in Specialty Occupation – 3 years initial duration of stay, possible extension for additional 3 years maximum
  • J Visa for Exchange Visitor in Training Program – 5 year maximum duration of stay
  • TN Visa for Canadian professionals in certain occupations – usually available in 3 year renewable increments

4.1 Financial Responsibility
For all J and TN visas, the financial responsibility for all filing fees, consular or embassy charges or assessments associated with obtaining such visa rests with the applicant (employee, research scholar, lecturer, etc.).

For H visas, the financial responsibility for filing a petition associated with obtaining such visa will be the responsibility of the MBL. The costs incurred will be charged to the hiring (or current) department.

5.0 Permanent Residence Immigrant Visas (Green Card)
Only foreign nationals granted Lawful Permanent Residency (“LPR”, sometimes referred to as a “green card”) are allowed permanent legal residence status in the United States. Unlike most temporary non-immigrant visas, Foreign Nationals with LPR are not restricted by an employment-based visa to a particular sponsoring employer.
Immigration regulations stipulate that employers may only sponsor international employees for permanent residency if both of the following conditions are met:

  1. the position is permanent and full-time, and
  2. the employee intends to remain in the position indefinitely.

5.1 Eligibility
MBL support of an immigrant visa application is made only by considering a number of factors. These include the level of the position (the title of Research Associate or Staff Scientist II or Staff Director-level and above may qualify), how long the employee has been at the MBL (a minimum of 3 years proven success with the MBL is required), the permanence of the position and the likelihood of long-term employment at the MBL, the level and certainty of funding for the position, the qualifications of the employee, and executive support for the case.
Under no circumstances should a non-immigrant employee be advised that the MBL will pursue permanent residence status on his/her behalf before approval is granted in writing by the Human Resources Office.

5.2 Processing Time

5.2.1 Immigrant visa applications are time consuming. It may take over two years to complete the procedure because of requirements and delays at various governmental agencies. During the application process, employees must maintain a valid non-immigrant visa status if he or she is in the United States.
5.2.2 The MBL may elect to support an application for or extension to a temporary visa to enable the appointee to start or continue in employment while preparations are made for a permanent visa petition.

5.3 Financial Responsibility and Repayment

5.3.1 For Employment-based Permanent Residence Immigration Petitions, the financial responsibility for all filing fees for the individual’s petition will be the responsibility of the MBL; filing fees, consular or embassy charges, etc. for any dependents of the individual will be the responsibility of the individual. The costs incurred for which the MBL is responsible will be charged to the hiring (or current) department.
5.3.2 In the event that an employee voluntarily resigns or otherwise voluntarily terminates his or her employment from the MBL within three years of a Permanent Residence Immigration petition being filed by the MBL on his/her behalf, the employee will be required to repay to the MBL all associated costs and fees incurred in preparation of such filing.

5.3.2.1 Before the application process begins, the employee will be required to sign a Promissory Note and Agreement to Reimburse to that effect. The Original Note and Agreement to Reimburse will be kept in the Human Resources Office, with a copy kept and monitored by Financial Services.
5.3.2.2 In the event an employee does not repay, all legal fees and collection costs associated with enforcement of the Note and Agreement to Reimburse will be the responsibility of the employee.

6.0 Orientation of Foreign Nationals

6.1 Orientation is a key element that can help provide a new foreign national at the MBL a better chance at succeeding in our environment. Hiring managers are responsible for providing a foundation of training and support, both formal and informal, for foreign national employees to “thrive,” not just survive, in their new position and in what is possibly a new country and culture.

6.2 If a Hiring Manager has specific concerns regarding cultural adjustment, he or she should contact Human Resources and/or the MBL representative to the WHOI International Committee for a list of resources available for support.

7.0 Engaging an Attorney
Only Human Resources is authorized to engage legal representation for any nonimmigrant or immigrant petition or application. A foreign national may choose to retain an attorney to represent his/her interests. The MBL will not pay for or offer reimbursement for this private representation. Should a private attorney be retained by a foreign national in support of an H1-B status or Permanent Resident status, the attorney must submit the petition and labor condition application through Human Resources.

8.0 Exceptions to Policy
It is not anticipated that there will be any exceptions to the policy as provided herein. However, a compelling case and request for exception can be presented to the Director of Human Resources for consideration. Final determination on a request for exception to policy will be made by the Director of Human Resources in consultation with the Chief Academic and Scientific Officer.

9.0 Policy Clarification and Updates:
Policy clarification and updates are available from the Human Resources Office.