Employing Foreign Nationals

RFCUNY complies with federal regulations regarding the employment of foreign nationals (non-US citizens and non-permanent residents).

Hiring a foreign national and bringing them to RFCUNY in a timely manner requires specialized knowledge and advice. Human Resources handles nonimmigrant petitions filed with United States Citizenship and Immigration Services (USCIS) on behalf of foreign national employees, including H-1B, E-3, and TN visas. Human Resources may also assist outside counsel with petitions for permanent resident status.  A PI who wishes to a hire a foreign national is urged to contact Human Resources months in advance of the start date if at all possible; petitions before USCIS are subject to delays that Human Resources is unable to control.

J-1 Exchange Visitor (Scholar)

The Exchange Visitor Program (EVP) is administered by the United States Department of State (DOS), which designates each CUNY school to sponsor scholars in particular categories for academic level research and teaching. RFCUNY is not a sponsoring school; rather, CUNY schools sponsor the J-1. Individuals in J-1 status with CUNY may, under most circumstances, work for RFCUNY. (Individuals in J-1 status with an institution other than CUNY need written authorization from the sponsor in order to work for RFCUNY. That authorization should be designated on the DS-2019.)

"Research Scholar" is the most commonly used J-1 category for CUNY scholars. The maximum stay in the United States in J-1 status in the "Research Scholar" or "Professor" category is five years, under certain conditions. For more information on J-1 visas, a foreign national should contact the DSO (Designated School Official) at the individual campus.

H-1B Visa for Temporary Workers in Specialty Occupations

H-1B visa status is a temporary, nonimmigrant category. Those eligible include professionals in specialty occupations who will work for RFCUNY. A "specialty occupation" is an occupation that requires the theoretical and practical application of a body of highly specialized knowledge. Only RFCUNY may petition USCIS for H-1B status based on RFCUNY employment. Outside attorneys and agents are not authorized to perform this work.

RFCUNY sponsorship for H-1B status may be available to employees who are offered positions that fall within the legal definition of a “specialty occupation.”

Application Procedures

For a case in which H-1B status is under consideration for a current or prospective employee, ample lead-time is critical. As H-1B processing involves several steps with the U.S. Department of Labor (DOL) and USCIS, the case should be discussed with RFCUNY at least four to six months in advance of the anticipated start date. RFCUNY will determine whether H-1B status is appropriate under the law and regulations.  If RFCUNY confirms that H-1B status is appropriate, the principal investigator (PI) and the current/prospective employee will be provided with a detailed checklist regarding the required procedure and documentation. RFCUNY completes the application and files the appropriate materials with the DOL and USCIS. In most cases, an employee may begin employment with RFCUNY when the petition has been approved.  If the prospective employee is currently in H-1B status with another employer, they may begin employment when RFCUNY receives an official USCIS receipt notice.

Limitations and Payment

H-1B status may be approved for a total of six years - an initial period of one to three years and extensions for one to three years. The six-year limit remains in effect regardless of changes in employer. An H-1B scholar sponsored and appointed by RFCUNY must be paid by RFCUNY. In all cases, salary levels must meet DOL prevailing wage guidelines.

An H-1B petition is employer-specific such that only the petitioner(s) may employ the individual. If an individual is in H-1B status for employment elsewhere, that individual is authorized for RFCUNY employment only if RFCUNY also files an H-1B petition (a concurrent petition). Employees in H-1B status may be reimbursed for travel and expenses by an outside institution, but may not receive honoraria or other compensation.

B-1 (or WB) Visitor for Business

The B-1 visa classification may be used by a scholar coming to the United States for a temporary stay (generally up to six months) to participate in scientific, educational, or professional collaboration, business conventions or conferences, or to undertake independent research. B-1 visa holders are prohibited from engaging in paid employment. The foreign national must apply for a B-1 visa at an American consulate abroad and should present a letter of invitation from the CUNY faculty host.

Payment

In general, a B-1 or "WB" visitor may not receive a salary or income from a U.S.- based institution or entity, but may receive provision for expenses incidental to the visit, such as a subsistence allowance or reimbursement for travel and daily living expenses. Under certain restrictive circumstances, the regulations may permit honoraria to be paid for visits of fewer than nine days.

F-1 and J-1 Students on Practical or Academic Training

An international student who will complete a degree at a university in the United States may be eligible to apply for a period of training and employment authorization in the field of study immediately upon degree completion. An F-1 student may be eligible for a 12 month period of "practical training," with possible extension if the degree was in a STEM (Science, Technology, Engineering, Math) field. A J-1 student may be eligible for 18 months of "academic training,” with possible extension if the student completed a doctorate and will do postdoctoral research. Upon completion of practical or academic training, it may be possible to apply to USCIS for change of status, to H-1B or J-1 scholar, for continued employment.

An F-1 and J-1 student may apply for practical or academic training in advance of receiving their degrees through the international student office at their university. International student offices should urge prospective practical or academic trainees to apply for this permission well in advance of the proposed start of RFCUNY appointment or employment. USCIS will issue an Employment Authorization Document (EAD), a small laminated card, as proof of employment eligibility to F-1 practical trainees. J-1s do not need EADs but should possess evidence of academic training authorization with a valid Form DS-2019.

TN Visa for Professionals who are Nationals of Canada and Mexico

TN is a temporary, nonimmigrant status available in increments of up to three years to certain Canadian and Mexican citizens. TN status is employer specific and available for specific qualifying professions only. The procedures for Canadians and Mexicans to obtain TN status are different. Canadian citizens are not issued visa stamps and instead are admitted to the United States in TN status when they present appropriate documentation to immigration inspectors at the U.S. port of entry. Their TN status is then noted on the Form I-94 arrival record and/or admission stamp in the passport. Mexican citizens must obtain TN visa stamps before being admitted to the United States with the TN notation on the Form I-94 arrival record and/or admission stamp in the passport.

Those Who Qualify

RFCUNY sponsors current/prospective employees for TN status in cases where the position offered is a “qualifying profession” under the law and regulations. TN status is available only to individuals in certain professions, as enumerated in an appendix of the NAFTA free trade agreement.  RFCUNY will determine whether TN status is appropriate under the regulations.  If RFCUNY confirms that TN status is appropriate, the PI and the current/prospective employee will be provided with a detailed checklist regarding the required procedure and documentation.

O-1 Visa for Individuals of "Extraordinary" Ability

O-1 is a temporary, nonimmigrant visa category for individuals of extraordinary ability, meaning those who have distinguished themselves and have risen to the top of their fields of endeavor. RFCUNY does not petition USCIS for O-1 status based on RFCUNY employment. Outside attorneys may be authorized to do this work.

E-3 Visa for Australian Nationals Who are Temporary Workers in Specialty Occupations

E-3 visa status is a temporary, nonimmigrant category only available to nationals of the Commonwealth of Australia. Those eligible include professionals in specialty occupations (requiring "the theoretical and practical application of a body of highly specialized knowledge").

RFCUNY sponsorship for E-3 status may be available to employees who are offered positions that fall within the legal definition of a “specialty occupation.” RFCUNY is the only authorized petitioner to the DOL and to USCIS for E-3 status based on RFCUNY employment. Outside attorneys and agents are not authorized to do this work. E-3 status is available in two-year increments only. There are a limited number of E-3 visas available each year. In all cases, salary levels must meet DOL prevailing wage guidelines.

Application Procedures

Ample lead time is critical and, therefore, RFCUNY must be contacted at least 4-6 months before the anticipated employment start date.  RFCUNY will determine whether E-3 status is appropriate under the law and regulations. If RFCUNY confirms that E-3 status is appropriate, a PI and current/prospective employee will be provided a detailed checklist regarding the required procedure and documentation. RFCUNY completes the application and files the appropriate materials with the Department of Labor and USCIS.

An RFCUNY appointment is only authorized once an employee is admitted in E-3 status or USCIS has approved a change to E-3. If an individual is in E-3 status for employment elsewhere, that individual is authorized for RFCUNY employment only if RFCUNY files and obtains approval of an E-3 petition from USCIS, OR the individual leaves the US and reenters with a new employment letter from RFCUNY, following DOL certification of an RFCUNY Labor Condition Application.

Other Considerations

Many RFCUNY employees in non-immigrant status wish to pursue immigrant status, known as Lawful Permanent Resident (LPR) status. LPR status permits an employee to live and work in the US indefinitely in most cases. RFCUNY does, in many cases, sponsor employees for LPR status. Outside attorneys are permitted to file permanent resident petitions based on RFCUNY employment. RFCUNY does not file such petitions, but will serve as a resource to outside counsel. Decisions regarding RFCUNY support will be made by RFCUNY after consulting with the PI or PD and the employee.

Employees may be eligible for an employment-based, first, second or third preference visa.  The legal requirements, as well as the employer responsibilities, are different for each type of filing. Decisions regarding the appropriate category will be made in consultation with the PI or project director, employee, and outside counsel. 

Immigrant visa applications are time consuming. It may take several years to complete the procedure due to processing backlogs at the Department of Labor, if applicable, USCIS, and, in some cases, the American consulates abroad. During this processing time, an employee must maintain a valid nonimmigrant visa status to remain and work in the United States.