SP 3-05a – Employment of Foreign Nationals

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SP 3-05a

APPROVED: July 9, 2018
EFFECTIVE: July 9, 2018
REVISED: January 10, 2019

REFERENCE: Immigration Reform and Control Act of 1986, Immigration Act of 1990, Illegal Immigration Reform and Immigrant Responsibility Act of 1996

APPROVED:

/ Joseph A. Garcia /
Joseph A. Garcia, Chancellor

APPLICABILITY

This procedure applies to the employment of foreign nationals within the Colorado Community College System, including its Colleges (CCCS or System).

PURPOSE

CCCS supports broad recruitment in filling positions within the System and recognizes that the System is competing in a global market for a highly qualified workforce, including the employment of qualified foreign nationals within the System.

The purpose of this procedure is to ensure compliance with all legal requirements for the sponsorship of foreign nationals, both non-immigrant and immigrant cases. To the extent any portion of this procedure may be contrary to those current or revised requirements in the future, the System shall deviate from this procedure to conform to those changes, and this procedure shall be modified accordingly thereafter.

BASIS

CCCS’s practices are consistent with federal statutes and regulations governing the employment of foreign nationals in the United States, the issuance of certificates of eligibility, and the filing of petitions seeking authorization for both temporary employment (non-immigrants) and permanent employment (immigrants).

Appointments to positions within the System, at whatever level, are contingent upon the prospective foreign employee obtaining the appropriate lawful immigration status within the United States. Under no circumstance should there be any unauthorized employment permitted by any foreign worker within the System.

For the employment of non-immigrants within the System, the term of appointment may not exceed the duration of the employee’s approved immigration status.

While employment of foreign nationals is always subject to the regular terms and conditions for all employees within the System, under no conditions should the term of employment for the foreign national exceed the expiration date authorized for employment in the United States.

For immigrants (lawful permanent residency approvals), the term of employment should be consistent with the treatment of other permanent employees within the System.

PROCEDURE

The System has the discretion to pursue non-immigrant or immigrant petitions for employment eligibility based on business needs of the System, but is not required to do so.

CCCS only supports petitions that it authorizes through its approval process.

Petitions for non-immigrant (temporary work visas) or Employment-Based residency cases (through labor certification) submitted without the signed approval of the Chancellor, College President or their respective designee, are not binding on the System.

Prior to submission of all the immigration documents to the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Service, the U.S. Department of Labor, or to the U.S. Department of State filed by the System, a licensed attorney authorized by the Colorado Attorney General’s office to provide immigration services shall review and advise the System.

The authorized attorney may review eligibility of prospective cases with the System and provide counsel and advice. Once a decision is confirmed to proceed, only approved counsel should be retained to prepare the necessary immigration case. This procedure will not supplant other Board Policies, System President’s Procedures, or College specific procedures/guidelines with regard to all hiring, or termination of employment practices.

In all cases involving the sponsorship of a foreign worker by the System, regardless of visa type or sponsored position, the System must conduct an appropriate search if normally required for the position.

Under no circumstances will CCCS support filling a position requiring an immigration petition process through a direct appointment.

The College or System Office initiating sponsorship of the foreign national employee is responsible for all the required attorney fees, administration costs and the required agency filing fees that are associated with the sponsorship of foreign workers.

This includes, but is not limited to, the required attorney fees, costs, and filing fees for a Non-Immigrant Petition process (H-1B, Treaty National (TN), E-3, etc.).

This also includes the required attorney fees, costs, and filing fees for a Labor Certification Process with the U.S Department of Labor (immigrant process).

The required attorney fees, costs, or filings fees paid by the System should not be sought or recovered from the foreign national. CCCS’s success in obtaining temporary visa approvals, extensions, and permanent visas for its employees is dependent upon the timely filing of the appropriate documents with the various U.S. Government agencies named above.

The College or System Office that is initiating the sponsorship of a foreign national employee must consult the System legal department or their designated and authorized representative prior to making a formal offer of employment to a foreign national, to ensure that he or she is eligible for the nonimmigrant or immigrant classification necessary to accept the appointment within the System.

Once eligibility is established, the System legal department or their designated and authorized representative must advise the System of the procedures and time frames required for the visa requested and facilitate the timely filing of applications.

When the sponsored foreign national is approved for employment within the System, the foreign national employee must perform only those functions and responsibilities that are consistent with the appointment and authorized by the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, or the U.S. Department of State. Any changes or modification to the functions, responsibility or location of the approved employment, must again follow this procedure.

Any foreign national sponsored for employment within the System, can only begin performing services after having obtained all necessary government approvals to be lawfully employed at the System.

EMPLOYMENT-BASED PERMANENT RESIDENT STATUS

The decision to pursue Employment-Based Permanent Resident Status for an employee is dependent on the interests of the System and will only be filed for individuals holding full-time appointments in permanent positions with a proven history of being hard-to-fill or which require special skills.

It is the policy of CCCS that Permanent Resident Status cannot be pursued solely for the benefit of the foreign national.

With approval of the Chancellor or College President, permanent residence petitions may be authorized and may be prepared and submitted only after the foreign national has been on an approved non-immigrant work status/visa for four years AND after an appropriate time has elapsed to provide a sufficient evaluation of performance, except in the case where an exceptional circumstance exists as identified by the Chancellor, College President or their respective designee.

Sponsorship by the System for Employment-Based Permanent Residency may be undertaken only if there is sufficient justification that the proposed foreign national employee is fully qualified through education, experience, skill, and/or training, outside of that experience which has been obtained by the foreign national within the sponsored position at the System.

When approval has been received to pursue an Employment-Based Permanent Residency case for an employee, the hiring entity, under authorized legal guidance, will be required to follow current legal requirements for processing such cases/petitions.

The College or System Office that is initiating the sponsorship of a foreign national employee will be responsible for any required employer attorney fees, administrative or advertising expenses, and filing fees, for the permanent resident procedure. All other legal fees, costs, or filing fees that are not mandated to be paid by the sponsor, will be the complete responsibility of the foreign national employee.

REVISING THIS PROCEDURE

CCCS reserves the right to change or modify any provision or requirement of this procedure at any time, without any advance notice, and the change shall become effective immediately.