(1) The decision to sponsor an employee for a non-faculty labor certification case is to be made at the Departmental level.
(2) All labor certification cases must be prepared and filed by attorneys who are authorized by the University to file cases on its behalf. For a list of approved attorneys, go to http://www.k-state.edu/isss/permanentresidency/attorneys.html. Please note, too, that Department of Labor regulations require the employer (i.e. Department) to pay for the legal fees and other costs of the labor certification case, without reimbursement by the employee. The employee can pay for the other petitions that are filed for permanent residency, but cannot pay for the costs of the labor certification case.
(3) A Department should not move forward with a non-faculty labor certification unless the Department considers the position to be hard-to-fill. This is because the labor certification requires the employer to show it has engaged in recruitment and has not been able to find a qualified US worker who is available for and willing to accept the position on the same terms and conditions as offered to the foreign national employee.
(4) Where a Department decides to sponsor a foreign national employee for labor certification, the university’s policy is that the advertising needs to be coordinated with the contract renewal period (i.e. it needs to occur BEFORE the contract is renewed). For example, if the contract ends on June 30 and renewal would likely occur on July 1, then a labor certification case should be opened approximately 4-5 months in advance. This allows ample time to prepare the case, and also allows the recruitment to take place approximately 30-60 days before the contract renewal date. The reason for timing the recruitment in this fashion is that the university considers the position “open” if the contract is up for renewal but hasn’t been renewed.
(5) For the university to consider a “regular” appointment to be “open”, the foreign national employee seeking labor certification sponsorship needs to either resign from the position, or request that his or her contract be converted to a “term” contract. This action is necessary for the university to consider the position to be “open” for purposes of conducting the required recruitment for labor certification, and also allows the foreign national to re-apply during the recruitment period.
(6) The University requires the foreign national employee to apply for the position. In addition, the employee needs to understand that the Department always has the prerogative to hire someone else. In such event, the foreign national would not have his or her contract renewed. (Please note that if this were to occur, resulting in a shorter period of employment than was requested in the H-1B, then the Department would be required to offer to pay the cost of the foreign national’s plane ticket home, in accordance with DHS regulations [this is required any time that the employment is terminated before the H-1B end date.])
(7) The department shall pay the immigration attorney retained to handle the case an additional $200. The attorney shall seek, with no further charge to the department, a separate review and opinion from another KSU-approved immigration attorney to ensure that the new recruitment does not create an improper preference for the employee seeking permanent residency.
(8) Where a Department has another opening for an identical position, and wishes to avoid the inconvenience of having to run two different sets of advertisements, or where there is some other reason the Department wishes to advertise for the labor certification during a time period that does NOT coincide with the foreign national’s contract, then by mutual agreement, the Department and the foreign national may re-negotiate the current contract and modify the end date. Where another identical position is open, this avoids the inconvenience of having to run two different sets of advertisements. It could also facilitate the employee’s getting a labor certification on file earlier, which may be necessary to extend the H-1B past the 6 year limit, for example. The Department must consult with the University Attorney’s Office to make any modification to the employment contract.
(9) Where the Department is advertising for another open position, the advertisements specifically need to state “one or more positions are available” or list the job title in the plural. This is because the Department of Labor requires the advertisement to indicate that more openings are available in the event a US worker is hired.
(10) It is not necessary to inform the Office of Affirmative Action that the recruitment is for a labor certification case; however, if the Office of Affirmative Action asks why the advertisement is phrased a certain way, or will be placed in a certain publication, then the needs of the labor certification case can certainly be discussed. The Office of Affirmative Action will review search documents to ensure that:
- The job announcement and ad must contain a complete description of the vacancy, including job responsibilities, duties and minimum qualifications (education, training and experience)
- The minimum qualifications must be those required to perform the duties and responsibilities and are not tailored to the desired foreign worker’s qualifications, are not unduly restrictive, and only include restrictive requirements that are necessary for satisfactory job performance
- Any experience gained while working at the University is not used to create an artificial minimum qualification barrier for otherwise qualified candidates
- The hiring department invites all of the candidates who appear to meet the position requirements interview for the position.
(11) Because the advertisement text for the labor certification case should only list required, and not preferred skills, applicants should be instructed to contact the Departmental HR Representative for additional details regarding the position so that the HR Representative can get them the complete position description upon request (this is common, anyway, for KSU advertisements, which are usually shorter than the actual position description and usually have the HR Representative’s e-mail address for additional details).
These guidelines have been approved by the Office of General Counsel and the Office of Affirmative Action, with input from the International Student Center and outside counsel. Other universities or employers may have different criteria; however, we believe these guidelines are most consistent with the university’s internal hiring practices and our Affirmative Action policies.