Hiring a Foreign National | International Center

Hiring a foreign national employee differs significantly from hiring a U.S. citizen, and may require the hiring unit to obtain employment authorization before the individual can work in the U.S. In some instances, the foreign national may already have employment authorization that can be used for a position at the University of Michigan, such as OPT (for foreign students who recently graduated) or a green card. Many others, however, will need to be sponsored for a given immigration status in order to start a position at U-M.

The process of obtaining employment authorization takes time and may involve many different organizations:

Hiring unit
Faculty and Staff Immigration Services (FSIS) at the International Center (IC)
Human Resources
U.S. Department of Labor
U.S. Citizenship and Immigration Services
U.S. Customs and Border Protection
U.S. Department of State

Depending on the immigration status being sought, hiring departments may need to start the request process seven or eight months in advance. Green card applications may take many years, depending on someone’s national origin and the specific green card application process.

The hiring and employment of foreign nationals at the University of Michigan, as well as the role of FSIS and the IC are controlled by two key Standard Practice Guide (SPG) Policies:

The rules and regulations pertaining to immigration in general and obtaining employment authorization in particular are very strict. Especially if there is a reasonable chance that a foreign national may be selected for a given position and to avoid unnecessary complications and delays, the processes described on the FSIS website should be followed closely.

Should you have any questions, please be sure to contact FSIS.

Process Overview

The employment-based immigration process is a multi-step process that requires input from the hiring unit and the international employee as well as several U-M offices, including (Academic) HR, the Export Control Program and the Shared Service Center. The application involves several federal governmental agencies, such as the Department of Labor, Department of State and the United States Citizenship and Immigration Service (USCIS). The process is managed and controlled by the Faculty and Staff Immigration Services (FSIS) office in the International Center.

As governmental processing times can be significant, once a decision to hire a foreign national has been made, the hiring department should consult with FSIS as soon as possible to determine the appropriate immigration status, timelines involved and to start the application process by submitting the relevant authorization form:

An FSIS adviser will prepare and submit the relevant petition to the appropriate agency for approval. At each step of the process, FSIS will provide detailed guidance and advice on how to proceed. As indicated in the SPG, only FSIS may prepare and submit immigration-related petitions on behalf of the University of Michigan.

Required Wage

To qualify for certain immigration statuses, the foreign national must be paid the required wage. The required wage is independent from many HR considerations, and, in fact may run counter to HR’s guidance.

The required wage in the H-1B context is determined by FSIS and is equal to the prevailing wage or the actual wage, whichever is higher. (In the case of green card applications that require a labor certification, the actual wage is not considered.)

The prevailing wage is the wage that people who are in a similar occupation in a given geographic are paid. This wage is based on external wage data, provided by the Department of Labor, and takes into account the requirements for the position vis-à-vis the requirements that the Department of Labor considers typical for the occupation. Note that many occupations, as defined by the Department of Labor, are quite broad and allow for little flexibility.

The actual wage is the wage that people who are similarly employed with the petitioning employer, i.e. the university, are paid. In theory, this is the wage that people doing the same work with the same level of experience, skills and accomplishments are paid.

In some cases, the prevailing wage is higher than the actual wage and even the offered wage. If the prevailing wage is higher than the offered wage, the offered wage must be increased to meet or exceed the prevailing wage.

Employment Locations

International employees in H-1B, TN, E-3 and other non-immigrant statuses must have employment authorization for each proposed work location, including for working from home. A change to or addition of an employment location may result in the need to update the individual’s immigration record or the filing of an amendment petition with USCIS. When considering a change or addition of employment location, please review the HR information on remote employment and submit an Employment Change Notification to FSIS so that a determination can be made what steps must be taken.

Limited Exceptions

The Department of Labor allows for very limited exceptions to the requirement that all employment locations are disclosed for employees in H-1B status, as listed below. Please consult with FSIS for additional guidance before seeking to rely on these exceptions:

employee developmental activity, such as a conference
nature of the particular worker's job functions mandating short-term presence at other location
short-term placement (up to 30/60 days), while the employer pays for the employee's travel, lodging, meals, etc.

Dry Appointments, Visiting Scholars and Volunteering

Dry appointments are unpaid, courtesy appointments, usually given to individuals already employed at the University or external medical practitioners so that they may have admitting privileges or have access to systems necessary for their external work (e.g. supervision of practicum students). Even though people with a “dry” appointment are not necessarily engaged in work and no I-9 is completed for them, they are considered employees of the University.

Visiting Scholars, by definition, are not employees of the University and are not providing a service to the University. However, they are here to engage in work activities, be it on behalf of the University or another entity. They may or may not be paid.

To qualify for a dry appointment, a visiting scholar appointment or any other type of paid or unpaid appointment, the individual in question must have employment authorization.

While foreign nationals may volunteer while in the U.S., individuals whose employment authorization has expired or has not yet begun may not volunteer in the position (or a portion thereof) he or she held or intends to hold for employment. They may also not volunteer in a position that is normally compensated. For more information on the University’s volunteer policy, refer to the Office of General Counsel.

Job Offer Letters

If your final candidate is a foreign national, it is critical that the terms of the job offer and position be written clearly and concisely, and use wording that will not be misinterpreted by either USCIS or the final candidate.

All U-M offer letters are required to use consistent wording to specify employment eligibility and regulatory immigration requirements. Effective 6/12/24, the wording approved by the International Center, Office of the Vice-President and General Counsel, University Human Resources, and Academic Human Resources, is as follows:

“This offer is contingent on meeting all employment authorization and applicable regulatory immigration requirements before your start date. In addition, your continued employment with the University requires you to maintain valid employment authorization and to comply with all applicable immigration regulations."

If you have any questions about the appropriate use of wording used in your job offer letter, please contact FSIS.

Work Eligibility Questions

During the application process, hiring units are required to ask the following questions of all candidates (not just those who are foreign nationals) to determine up front if the individuals will require visa sponsorship for employment at the University of Michigan.

Are you currently eligible to work in the United States of America?
Do you now or in the future require visa sponsorship to continue working in the United States?

All individuals who apply for staff positions are prompted to answer these questions directly in eRecruit.

NOTE: It is a violation of federal and state anti-discrimination laws and University of Michigan policies to discriminate against applicants because of their race, ethnicity, or national origin.

How to Interpret Responses to Required Immigration Status Questions?

The following table provides additional information to help you understand what the response to the following questions may mean for a hiring unit and when it may or may not be appropriate to ask follow-up questions about immigration status according to the U.S. Department of Justice Unfair Immigration-Related Employment Practice provisions in the law.

Response to Eligibility for Employment Question (1)	Response to Need for U-M Sponsorship Question (2)	What This Response Means to U-M Hiring Units
Yes	Yes	Legal Compliance: When a candidate answer “yes” to both questions, the hiring unit is allowed to ask further questions about immigration status without risking liability or a discrimination charge. Additional questions may include: What is the basis of your current work authorization? When does that work authorization expire? Have you ever been on a J-1 visa? Petitioning for a U-M Employment Visa: Contact the U-M International Center before a formal job offer is made to ensure that the individual is eligible for continued employment and is not required to return to his/her home country before reentering the U.S. on another type of employment visa.
Yes	No	Legal Compliance: When a candidate answers “yes” to the first question and “no” to the second question, the hiring unit is not allowed to ask further questions about immigration status. Asking further questions risks a discrimination charge. Petitioning for a U-M Employment Visa: Based on this response, the candidate is indicating that he/she does not need U-M to sponsor a petition for an employment visa. Candidates who answer in this manner are likely U.S. citizens or permanent residents. Contact the U-M International Center if additional assistance is needed.
No	Yes	Legal Compliance: When a candidate answers “no” to the first question and “yes” to the second question, the hiring unit is allowed to ask further questions about immigration status without risking liability or a discrimination charge. Additional questions may include: What is your current immigration status? When does that status expire? Petitioning for a U-M Employment Visa: Contact the U-M International Center to determine the appropriate visa type for the position.
No	No	Legal Compliance: When a candidate answers “no” to both questions, he or she is not eligible for employment. The candidate likely misunderstood the questions and additional follow-up with the candidate is needed. Contact the U-M International Center for guidance.

Site Visits: USCIS maintains an Administrative Site Visit and Verification Program to verify information that is provided in certain petitions, including H-1B petitions. Through its Fraud Detection and National Security Directorate (FDNS), USCIS occasionally sends site inspectors to UM to meet with departments and individuals in H-1B status to verify whether the foreign national is employed as was represented in the application to USCIS. These site visits are often random and may occur prior to or after approval of a given petition. The inspector will likely ask for information of the person’s employment, including an overview of duties, as well as proof of employment (often in the form of paystubs or W-2 worms). If you have questions, please contact FSIS at [email protected] or 734-763-4081.

Export Control

Foreign nationals may be restricted from participating in certain research activities, whether they are abroad or in the U.S. They might need a license from the export organizations in the U.S. Department of State or the Department of Commerce (or possibly, some other government agency) in order to participate in the desired research. As part of the application process for certain immigration benefits, including H-1B status, FSIS will provide the hiring department with a questionnaire that addresses export control issues.

This questionnaire should be completed whenever it is requested by FSIS;
It should be completed by a person thoroughly familiar with the (proposed) work of the foreign national, but must not be completed by the foreign national him or herself.
Depending on the answers given to the questions on the questionnaire, the Office of Research may need to make a determination.

FSIS is required to disclose to USCIS if an export license is required for a given individual at the moment of filing of a given immigration petition. It is possible that a license is not required initially, but that one becomes necessary later on based on, for example, a new funding source or a slightly different research focus. While no new immigration petition may be required to report this need for a license, it is the department’s responsibility to comply with any and all licensing requirements. Therefore, any changes to a foreign national’s employment at the University may need to be discussed with the Office of Research.

Should a foreign national not be able to work temporarily while awaiting the issuance of the export license, the department may be required to pay the foreign national for the period of time he or she cannot work, depending on the immigration status the person holds.

Background

Usually, a license only is needed if there is research support under a contract that requires approval from the sponsor to publish the research results. If the project involves classified information or items, the individuals may need a security clearance. There could also be a problem if, in order to participate in the intended manner, the person would need access to information or computer software (e.g., from the sponsor or other research organizations) that is subject to certain controls under the export regulations. Controlled information might be obtainable by access to certain equipment, devices or materials; therefore needed access to such items might be controlled under the regulations. If such access is needed, licenses might be required from the government.

Depending upon the country of the foreign nationals, the government may have a policy of denying licenses with regard to certain types of technology or in general.

Retained Immigration Counsel

The primary responsibility for the filing of all employment-based immigrant and nonimmigrant petitions on behalf of the University of Michigan lies with the International Center at the Ann Arbor campus. However, the University has retained the services of several immigration attorneys to assist with the filing of specific immigration benefits, such as O-1 petitions, certain green card applications as well as Adjustment of Status applications.

The retained immigration counsel program is managed by the Office of General Counsel. The Office of General Counsel selects and retains the immigration counsel and negotiates the fixed fees. Most services handled through retained counsel are handled on a fixed fee model; as a result there is no price difference between the different law firms. For an overview of the current fees, refer to the Fees section.

The hiring unit is responsible for paying the legal fees, filing fees and costs associated with the primary beneficiary.

University policy strictly prohibits the department from deducting from a foreign national’s salary its business expenses (including legal fees or costs) associated with filing the petition.
Legal fees and costs associated with the immigration petitions are a normal and routine part of the recruitment and retention process, just like relocation reimbursement or assistance in finding employment for traveling partners or costs associated with starting a lab/research program/office.
It is important that the University establish the primary attorney-client relationship by assuming full responsibility for the legal fees and costs.

As outlined in the Fees section, the foreign national is responsible for the costs associated with their medical exams, vaccinations and photographs as well as all the visa related fees and associated costs for their dependents.

With limited exceptions, all employment-based green card applicants must now attend an in-person interview at USCIS as part of the Adjustment of Status application process, i.e. the final step of the green card application process. Given the additional scrutiny experienced by citizens from travel banned countries, the Office of General Counsel recommends that citizens of Chad, Iran, Libya, North Korea, Syria, Somalia, Yemen and Venezuela attend the interview with retained counsel. This fee can be paid by either the hiring department or the individual.

Request Process

To initiate any request that involves retained immigration counsel:

The International Center must receive the Request for Retained Immigration Counsel Form. If a department has a preference for a given firm on the retained counsel list, the department can indicate that preference on the request form.
Once this form has been received, the request will be assigned to the requested attorney. Departments should not contact retained counsel unless and until the attorney has been retained for a given immigration petition. Any immigration related questions should be directed to the International Center.
Once the attorney has accepted the case, he or she will contact the department to further discuss the request. In some instances, the attorney might contact the department and foreign national before accepting the request.

Questions or Concerns?

Please contact the International Center with any questions or concerns about the attorney working on a given case.

Changes, Furloughs, Transfers and Terminations

In general, a foreign national may only work for the employer who filed the immigration petition and only in the position for which it was filed. Therefore, any changes to a foreign national’s employment must be reported to FSIS so that a determination can be made whether an amended petition must be filed.

Foreign national will continue with your department, but there will be a change

The department should submit the Employment Change Notification Form before the change is permitted to take effect.

Changes that must be reported include, but are not limited to:

Changes in appointment percentage, including short-term effort reductions
Changes in duties, including adding teaching duties
Changes in location
Changes in title
Decreases in compensation/benefits
Promotions

Foreign national temporarily loses employment authorization - Short-Term Furlough

Occasionally, an international employee may temporarily lose their employment authorization. With prior approval from FSIS and UHR, these employees may be placed on a short-term furlough, pursuant to section II.B of SPG 201.73. Each request for a short-term furlough due to a lack of employment eligibility will be considered on a case-by-case basis. Approval is not guaranteed and will depend on a variety of factors, including the anticipated gap in employment eligibility.

To request approval for a short-term furlough for an international employee, units should contact David Muusz at [email protected].

Foreign national will be transferring to another UM department

New department submits H-1B Authorization Form
Current department submits the H-1B/ O-1 Termination & Transfer Form

Foreign national is leaving the University of Michigan

FSIS will need to withdraw the currently approved petition with USCIS to ensure that our wage liability for the foreign national ends. When a foreign national leaves the department the Termination & Transfer Form should be submitted. As is indicated on the Transfer and Termination form, the employer (i.e. the department) is liable for the foreign national’s return airfare in some instances. This includes situations in which an appointment is not renewed but the immigration approval continues to be valid.