The University of Texas at Austin utilizes two primary filing strategies in seeking U.S. Lawful Permanent Residency (“LPR”) for employees.
- Outstanding professor or researcher
- UT most often utilizes this filing strategy, as the Alien Labor Certification job market test can be complex and sometimes unpredictable.
- Labor certification
- Faculty and researchers who are supported by the university, but do not meet the immigration service’s evidentiary requirements for "outstanding" will be considered instead for alien labor certification.
- Teaching faculty can benefit from a special Alien Labor Certification process in many cases. Timing is critical, as there is a limited window of 18 months from when the employee is initially offered the position by the university.
In addition to confirming that the position is tenure-track for professors or permanent for researchers, the employing department will provide certain documents and information to ISSS. If the labor certification process is to be pursued, the department will provide extensive information and documentation concerning the advertising and recruitment undertaken and the search and hiring process. The professor or researcher will provide the bulk of the supporting documentation for ISSS to prepare the university's immigrant petition filing.
The Provost has delegated signature authority for these and other immigration-related applications and petitions to ISSS. This means that ISSS will prepare the required forms, provide information and file the labor certification application, if one is to be filed. ISSS will also prepare and file the university’s I-140 immigrant petition and exhibits in support. However, since the final adjustment of status is a personal application and not a petition, ISSS does not prepare this particular filing, but will provide general information and answer general questions, if requested.
- The university department or unit seeking U.S. Lawful permanent resident (“green card” or “LPR”) status on behalf of the professor or permanent researcher initiates the process by logging into myIO and completing the “Lawful Permanent Residency Request Department Information” e-form. The scholar will then receive an automatic email to log in to myIO to fill out the “Lawful Permanent Residency Biographical Information” e-form.
- Once both e-forms have been completed and received, ISSS will email directions for the employee to schedule an individual advising appointment, along with information on any letters and supporting documents that will be required.
- The professor or researcher will provide much of the supporting documentation, particularly for an outstanding professor or researcher petition, so the individual must be apprised of the initiation by the department.
It is essential that the LPR process be initiated well before the employee’s nonimmigrant visa status expires, ideally beginning up to two (2) years in advance. We regularly recommend that professors and permanent researchers who hold H-1B nonimmigrant visa status start the permanent residence process early, at least two (2) years before their six (6) years of H-1B nonimmigrant visa status is set to expire (in other words, early in the fourth year of their H-1B nonimmigrant visa status), if not much sooner.
Departments who wish to pursue Alien labor certification (“labor certification” or “PERM”) for a professor or certain researchers will be provided a checklist of items necessary for the "audit file," which is the information to be provided to the Department of Labor (“DOL”) in case the labor certification application is audited. DOL Audits can occur at the time of filing and remain a possibility for up to five (5) years. The audit file would include, among other items, a copy of the print advertisement and other means used to recruit for the position, a summary of the recruitment and hiring process, and an explanation of the "job-related reasons" for hiring, along with detailed information concerning the qualifications of the person hired, and the offer letter.
Once ISSS is provided all of the necessary information and the audit file is prepared, ISSS will file a Prevailing Wage Request and submit a Labor Certification application (online). Processing usually takes several months, and processing times can vary widely. Once the labor certification application is approved (or “certified”), ISSS must act to file the university’s immigrant petition, which must be done within six (6) months.
UT, and not the employee, will file the immigrant petition (on form I-140) with U.S. Citizenship and Immigration Services (“USCIS”). If it is a petition based on labor certification, the labor certification must first be approved before moving to this step. If it is for an outstanding professor or researcher, it may be filed once the supporting documentation has been collected and carefully compiled by ISSS. USCIS processing times vary widely, from as little as a few months, to as much as a year. It is probably wise to plan for processing of the immigrant petition to take from six months to a year, once the petition filed with USCIS. If the petition remains pending for more than a year, extensions of H-1B status beyond the usual six-year maximum may be possible, so filing early is essential.
Careful consideration must be given to the final step when seeking U.S. Lawful Permanent Residency (“LPR” or "green card"), which is part of the reason why the university allows researchers and professors to meet with an attorney of their own choosing in filing the final adjustment of status application (on form I-485). Filing for adjustment of status from within in the United States will often be the preferred strategy, but there have been periods during which extreme processing times or other factors made a trip to the U.S. consulate in the home country for consular processing of the permanent resident visa attractive. Generally speaking, one advantage of the adjustment of status filing strategy is that an applicant may obtain work and travel authorization while awaiting approval from US CIS. Also, in the unlikely event that something should go wrong with application processing, the employee would be in the United States while trying to resolve any issues. The logistics of consular processing can make for difficult planning, given varying local consular procedures, possible communication difficulties between U.S. government entities, and at least a possibility of being stranded abroad in should something go wrong.
Dependents (spouse and unmarried children under 21) may file adjustment of status applicants with the principal's or may request consular processing with the principal. Such dependents are often called "derivatives," since their right to apply for adjustment of status derives from the right of the principal applicant. Derivatives who are approaching age 21 face a particularly problematic and often complicated situation, and may need legal advice.