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International Scholar

Permanent Residency

Most foreign faculty members and other foreign employees (e.g., research or program staff) begin work with the University in a temporary or "non-immigrant" status such as H-1b, J-1, TN, or F-1 practical training. Where employment is expected to be long-term, however, departments may wish to consider attempting to obtain permanent resident or "immigrant" status for a foreign employee. This page provides a very brief summary of University procedures regarding the permanent residence process and contact information for further details and legal assistance.

Legal Representation

The University may only be represented in permanent residence cases by the OSU Office of Legal Affairs or by an outside attorney appointed by the Attorney General of Ohio pursuant to a request from the Office of Legal Affairs. This restriction on representation applies to all labor certifications and I-140 immigrant worker petitions, including the following categories:  EB-1 (outstanding professor/researcher), EB-2 (advanced degree professional or alien of exceptional ability), and EB-3 (professional or skilled worker). The foreign national is not permitted to find and pay for an attorney to represent the University in any immigration matter or otherwise hire an attorney to prepare immigration filings for the University. The foreign national may find and hire his own attorney only in cases where he is permitted to self-petition and sign the I-140 himself (e.g., EB-1 extraordinary ability self-petitions and EB-2 national interest waiver "NIW" self-petitions). The Ohio State University Office of International Affairs ("OIA") assists colleges and units in non-immigrant visa matters, such as H-1b, J-1, TN and F-1 filings.

This restriction on legal representation is not a matter of choice or University policy. The restriction arises out of Ohio law, pursuant to which legal work on behalf of the University must be performed by the Office of Legal Affairs or other entities given permission to perform legal work by the Ohio Attorney General. 

Important Contact Information

A department wishing to begin the permanent residence process for a faculty member or other employee should contact Mark J. Hedien in the Office of Legal Affairs via e-mail at hedien.1@osu.edu or by phone at (614) 292-0611. The Office of Legal Affairs will be able to provide detailed additional guidance and documentation appropriate to the specific case.  Legal Affairs will also assist in preparing and filing applications and petitions related to the permanent residence process. It is important to begin the process as soon as possible to minimize potential status problems in the future (e.g., H-1b extensions).

Faculty Teaching Positions

In order to obtain permanent residence for a foreign national hired into a tenure-track faculty teaching position (e.g., Assistant Professor), the sponsoring department must first show, in an application to the U.S. Department of Labor ("labor certification") that the faculty member was selected pursuant to a competitive recruitment and selection process and was the most qualified applicant.  At a minimum the recruitment steps must involve:  (1) a printed advertisement in a national professional journal; (2) an internal Notice of Filing; and (3) a recruitment report that describes the process in detail and why the selected individual is more qualified than each applicant not selected.  (Of course, University positions will also typically be posted on the OSU website.) The sponsoring department must keep copies of all advertisements, postings, resumes, and other recruitment documentation. The labor certification must be filed no later than 18 months after the faculty member is offered the position. Due to time involved in preparing the application, departments should begin the permanent residence process for a new faculty member immediately after making the job offer.

If the labor certification is approved, the employer must petition U.S. Citizenship & Immigration Services ("USCIS") to classify the foreign national as an "immigrant worker." (This petition is commonly referred to as the "I-140" – the USCIS form used for filing the petition.)  Here, USCIS evaluates the requirements of the position and the credentials of the alien to determine whether that foreign national fits into a statutory category that would permit him to apply for permanent residence.

If the I-140 petition is approved, the foreign national and his dependents may apply to USCIS for permanent residence in the United States. (This application is commonly referred to as the "I-485" – the USCIS form used for filing the application.) Here, USCIS looks primarily at the foreign national’s background to determine whether he is eligible for permanent residence (e.g., criminal record, immigration history, health). In some cases, depending on the country of birth of the foreign national, visa backlogs may result in a wait of several years after the I-140 is approved before the foreign national may file the I-485.

Non-Faculty Positions

In order to obtain permanent residence for a foreign national in a non-faculty position (e.g. research or program staff) the department must first show, in an application to the U.S. Department of Labor ("labor certification"), that no "minimally qualified" U.S. workers are ready, able, and willing to take the position on the terms offered. (Please note that both the legal standard and the required recruitment differ significantly between faculty and non-faculty cases.) Labor certification for non-faculty involves a government-specified recruitment process to test the U.S. labor market in a manner appropriate to the position.  Departments must contact the Office of Legal Affairs for detailed instructions and guidance concerning this process.

If the labor certification is approved, the remainder of the process is the same as that for faculty positions. The employer must petition U.S. Citizenship & Immigration Services ("USCIS") to classify the foreign national as an "immigrant worker." (This petition is commonly referred to as the "I-140" – the USCIS form used for filing the petition.) Here, USCIS evaluates the requirements of the position and the credentials of the alien to determine whether that foreign national fits into a statutory category that would permit him to apply for permanent residence.

If the I-140 petition is approved, the foreign national and his dependents may apply to USCIS for permanent residence in the United States. (This application is commonly referred to as the "I-485" – the USCIS form used for filing the application.) Here, USCIS looks primarily at the foreign national’s background to determine whether he is eligible for permanent residence (e.g., criminal record, immigration history, health). In some cases, depending on the country of birth of the foreign national, visa backlogs may result in a wait of several years after the I-140 is approved before the foreign national may file the I-485.

Exemptions from the Labor Certification Requirement

There are limited situations in which the sponsoring department may seek an exemption from labor certification and begin the residence process at the I-140 immigrant worker petition stage. Please note that these cases carry a very high burden of proof and should only be filed where the department can make a strong argument that the foreign national satisfies all of the requirements. The following is a discussion of the two exemption categories that are of most interest in the University context.

First, a department may file a petition for an Outstanding Professor or Researcher (also known as "EB-1b").  To qualify in this category, the department must show that the foreign national:  (1) is internationally recognized as outstanding in a specific academic field; (2) has three years of relevant teaching or research experience; and (3) has a job offer for a tenure-track teaching or permanent research position. In addition to avoiding the labor certification requirement, the outstanding professor/researcher classification places the foreign national in the "1st Preference" employment-based immigration category. This can dramatically shorten the overall time to obtain permanent residence for foreign nationals from countries where the employment-based visa categories are severely backlogged (e.g., India and China). However, petitions for outstanding professors or researchers are heavily scrutinized, and the foreign national must meet a very high standard.

Second, a department may file a petition seeking a waiver of the labor certification requirement in the national interest. To qualify for a national interest waiver ("NIW"), the foreign national must have an advanced degree or exceptional ability in the sciences, arts, or business. In addition, the petition must satisfy a three-part test:  (1) the foreign national must be working in a field of substantial intrinsic merit; (2) the benefits of the alien's employment must be national in scope; and (3) the alien or employer must show that the national interest will be adversely affected if a labor certification is required. Interpretation of the third part of this test is extremely complex, but in the academic environment, for example, USCIS may examine whether the foreign national has contributed to his field to a substantially greater degree than his peers. Unlike petitions for outstanding professors or researchers, NIW cases, while avoiding the labor certification process, fall in the "2nd Preference" and will still potentially result in lengthy waiting periods for foreign nationals from countries where employment-based visa categories are severely backlogged (e.g., India and China).

As noted above, in all outstanding professor/researcher cases and all NIW cases where the University is the petitioner, the University must be represented by the Office of Legal Affairs or by counsel assigned through the Office of Legal Affairs.

Permanent Resident and "7th Year" H-1B Extensions

In most cases, a foreign national may only remain in H-1b temporary worker status for a total of 6 years.  After the end of the 6th year in H-1b status, the foreign national must be physically outside the U.S. for one year before he is permitted another six-year period as an H-1b.  

However, the American Competitiveness in the 21st Century Act ("AC21") permits limited H-1b extensions beyond the 6th year when an employer is sponsoring a foreign national for permanent residence.  Although there are several different sections of AC21 that affect these so-called "7th year" H-1b extensions, the most commonly applied provision permits extensions of H-1b status in one-year increments in cases where more than 365 days have passed since the filing of a labor certification or I-140 petition.  Thus, it is strongly recommended that a department considering sponsoring an employee for permanent residence file a labor certification or I-140 petition before the end of the employee’s 5th year in H-1b status.  Since it often takes many months to conduct the required recruitment for a labor certification and/or prepare an I-140, as a practical matter, the department should begin working on permanent residence before the end of the 4th year of the employee’s H-1b status.

There are other provisions and interpretations of AC21 that may offer relief in some cases where the 5-year deadline is missed, but a department must start the process early to avoid possible gaps in employment authorization.