Hiring Foreign Nationals

This information is presented to help clarify immigration requirements for potential employees and the procedures to be followed in order to qualify for employment at Kansas State University. If you need more information, please contact the International Student Center at (785) 532-6448.

Consider the H-1B status for tenure-track faculty positions, when the department envisions a long-term stay for the scholar, or when the department wishes to keep the employee as a permanent faculty or research member. Limitations of J-1 Research Scholar or Professor status should be discussed with staff advisors in the International Student Center.

Although the procedure for obtaining a TN visa which is available to citizens of Mexico and Canada is less burdensome, the H-1B is preferred.

Departments and/or potential H-1B employees are strongly advised to secure the services of an immigration attorney. The International Student Center can provide referrals for reliable attorneys upon request.

H-1B GENERAL INFORMATION

The H-1B classification is for foreign nationals who will be employed temporarily in a specialty occupation. A specialty occupation requires theoretical and practical application of a body of specialized knowledge and at least a BS degree or equivalent.

Allow sufficient time to file the H-1B petition and receive approval. Processing times vary nationwide but it could take from 6 weeks to 3 or more months to obtain approval from BCIS (Bureau of Citizenship and Immigration Services).

The initial H-1B period of stay may be for up to 3 years. Extensions in 3 year increments are granted for a cumulative maximum stay of 6 years.

The employee may not begin work until the BCIS has issued an approval notice granting the H-1B classification as well as valid starting and ending dates.

If the employee already holds the H-1B classification at another U.S. position the "portability privilege" may apply. This privilege allows the employee to begin work upon receiving notice that BCIS has received the filing of the new petition rather than waiting for official approval of the petition, assuming the individual is not currently out-of-status for other reasons.

There is no standard University policy regarding who pays the necessary BCIS filing fees or attorney's fees in those instances where legal assistance is secured. If state funds are used to cover the necessary fees they must be reported as part of the employee's compensation. If private funding is employed to cover these costs, there are no requirements to consider or report them as employee compensation.

Hiring departments may opt to pay a Premium Processing Fee of $1,000.00.This option guarantees that BCIS will respond within 15 days or your fee will be refunded. This fee is in addition to the application fee. Some hiring departments may consider payment of this fee as part of the employment negotiation agreement.

H-1B visa holders may not receive wages, salaries or gratuities for giving speeches or lectures at universities other than where employed. However, the individual may be provided with transportation and reasonable, incidental living expenses.

STEPS FOR FILING THE H-1B PETITION

  1. Make sure the employee meets the H-1B eligibility criteria (specialty occupation and minimum BS degree).
  2. Obtain a Kansas Prevailing Wage Statement approval from the KS Dept. of Human Resources, Topeka, OR use information from the on-line wage library. (See helpful web sites below)
  3. Submit a Labor Condition Application (LCA), form ETA 9035, to the US Dept. of Labor on-line or by mail. (See addresses and web sites below)
  4. Post a notice of intent to hire and a summary of the position description in two conspicuous locations in the department for 10 days.
  5. Submit completed paperwork for the Petition for a Non-immigrant Worker to BCIS Regional Service Center in Lincoln, NE. Refer to the information below or the helpful web sites for items to be included in the completed application packet.
  6. Receive BCIS H-1B approval notifying employee of final status and employment starting date.

DOCUMENTS TO BE INCLUDED IN THE H-1B PETITION APPLICATION

  1. BCIS filing fee payable to Immigration or to BCIS (The basic fee for an I-129 petition is $130.00 but there may be additional fees depending on the type of petition to be filed.)
  2. BCIS Form I-129W (H-1B Data Collection & Filing Fee Exemption).
  3. BCIS Form I-129 (Petition for Nonimmigrant Worker) and I-129H Supplement (H Classification)
  4. BCIS Form I-129 Supplement (for alien's dependent, if applicable)
  5. Approved Form ETA 9035 (Labor Condition Application for H-1B Nonimmigrant)
  6. Statement from the Department Head that the position qualifies as a "Specialty Occupation" (The statement should include the job duties to be performed, verification that the services to be performed require BS, MS, or PhD degree, and confirmation that the individual is qualified to accept the offered position and is coming to the US for temporary employment.)
  7. Copy of the position announcement detailing starting and ending dates of employment and rate of pay
  8. Translated, certified or notarized copies of alien's academic credentials (If the individual holds degrees earned at-non-US Institutions, a Credentials Evaluation Service must verify US equivalence.)
  9. Documentation concerning all previous US immigration history (Copies of former I-20s, IAP-66s, etc.)
  10. Copy of the BCIS waiver of 212-(e) if the individual holds a J-1 visa and is subject to the two-year home country requirement
  11. Copy of both sides of the I-94 (DO NOT SEND THE ORIGINAL.)
  12. Copy of passport pages showing identification, passport validity and visa
  13. Departmental cover letter summarizing purpose of petition and support for the application
  14. If dependents of the individual need to change to H-4 status while in the US, include BCIS Form I-539 (Application to Extend/Change Nonimmigrant Status)
  15. OPTIONAL: BCIS Form I-907 (Request for Premium Processing Service) with additional payment of $1000 Fee to expedite processing of petition within 15 days.

TN VISA CATEGORY GENERAL INFORMATION

The TN visa category is available only to citizens of Mexico and Canada specifically for "Professionals under the North American Free Trade Agreement".

Eligibility for the TN visa requires the profession/job must be on the NAFTA Professional Job Series List, the individual must possess specific qualifications for the job, the prospective position requires someone in that professional capacity, and the alien is intending to work for a US employer.

Some of the eligible occupations useful to the University include teacher, scientist, research assistant, scientific technician, technologist, computer systems analyst, economist, or engineer.

The TN visa is valid for a period of one year. Status may be renewed each year indefinitely, provided that the stay remains temporary in nature.

While there is no cumulative limit to the amount of time an individual may hold TN status, it may become increasingly harder to prove nonimmigrant intent the longer the individual remains in the US.

There is no "dual intent" privilege available for TN status as is allowed for the H-1B category.

TN PROCEDURES FOR CANADIAN CITIZENS

  • No petition, labor certification, or prior approval is required.
  • Canadian citizens make application directly with an immigration officer at the time s/he enters the US.
  • Canadian citizens are not required to obtain a visa.
CANADIAN TN APPLICATION
  • Proof of Canadian Citizenship (birth certificate, passport or naturalization papers
  • Letter of employment from K-State (describe professional occupation, duties, terms of employment, required qualifications)
  • Evidence of required credentials (diplomas, transcripts, licenses, certificates)
  • Verify purpose of entry to US is temporary
  • $50 filing fee
TN PROCEDURES FOR MEXICAN CITIZENS
  • The University must secure approval by the DOL of a Labor Condition Application using Form ETA-9035.
  • The University must have approval from BCIS of a TN petition using Form I-129.
  • The BCIS must approve issuance of a TN visa by a US consulate.
MEXICAN TN APPLICATION
  • Follow the same processing requirements outlined for the H-1B Classification
  • Proof of Mexican citizenship (birth certificate, passport or naturalization certificate)
  • Evidence that the employment is one of the eligible occupations
  • Submit all required documents to the BCIS Nebraska Service Center

Addresses

Nebraska Service Center
US Dept. of Justice/BCIS
PO Box 87129
Lincoln, NE 68501-7129

US. Dept. of Labor/ETA
Alien Labor Certification
1100 Main Street, Suite 1050
Kansas City, MO 64105

Helpful Websites

Foreign Labor Certification Form 
On-line Labor Certification Form and Procedures 
DOL FAQ's about permanent residence and H-1B Info 
BCIS Forms and Fees 
BCIS Home Page 
Dept. of State Home Page 
On-line Wage Library 
American Immigration Lawyers Association