Federal regulations mandated by the United States Department of State and the U.S. Citizenship & Immigration Service pose restrictions on employment of non-immigrant workers - both on and off pay-status . State of California regulations and Worker's Compensation regulations also mandate that all employees - on and off pay-status - be legally able to work in the United States and complete employment documentation before beginning work assignments.
A non-immigrant may come to Cal Poly on a temporary basis to engage in research, teach, or pursue some professional objective upon receiving a written invitation from the dean. The Academic Personnel Office will assist the dean in determining which visa category or immigration status is most appropriate
The following definitions may be helpful:
• Alien - Any person not a citizen or national of the United States.
• Immigrants - Aliens lawfully admitted for permanent residence (green card status). Immigrants can remain indefinitely although the "green card" is only valid for a maximum of 10 years at a time, retaining their foreign nationality, or they can opt for citizenship through naturalization.
• Non-immigrants - Aliens having temporary admission to the United States for specified purposes such as teaching or research, normally documented by a visa status issued by the U.S. Citizenship & Immigration Service. Non-immigrants are required to leave the United States when the purpose of their temporary stay has been accomplished or when the visa status expires.
• DS-2019 Form - Completed by the employer (Cal Poly) to request the J-1 visa status for a prospective non-immigrant ( temporary) lecturer, research scholar or student.
• I-94 - 3"x5" card issued to the non-immigrant upon arrival by INS - usually stapled inside passport. It documents the visa classification, date of admission, changes in classification, extension of stay and duration of authorization.
It is suggested that the following guidelines be followed when a college initiates the employment of a non-immigrant:
• Consult with the Employment Equity & Faculty Recruitment Office prior to the decision to offer a position to a non-immigrant.
• Completion of processing forms and documentation required for the visa. (Normally takes 3-6 months before the start of the appointment.)
• Appoint a Faculty Mentor to be a liason with the non-immigrant employee to provide such personal assistance as locating housing, providing information about the campus, local community and any appropriate information or assistance.
• Assign the non-immigrant only those functions and responsibilities that are consistent with the appointment and authorized by the U.S. Citizenship & Immigration Service.
• Insure that no prospective employees begin performing services until they have obtained all necessary government approvals to be employed at the University, such as the DS-2019 form from Employment Equity & Faculty Recruitment if J-1, DOS approval and USCIS approval if H-1B1, a valid visa, current I-94, social security card, I-9 form and payroll documentation, if applicable.
• Insure that non-immigrant employees have adequate health insurance coverage for themselves and for any visa dependents they have in the United States.
• Provide non-immigrant employees with adequate office and/or laboratory facilities, including desk space, access to telephone services, and access to department and Cal Poly facilities.
Notify the Employment Equity & Faculty Recruitment Office when non-immigrant employees terminate a program and/or leave Cal Poly.
The following is a brief overview of the principal visa classifications of non-citizens and the regulations affecting payment to them in the United States. The visas most commonly held by faculty are marked with an asterisk (*).
NON-IMMIGRANT VISAS A non-immigrant’s visa classification, place and date of admission to the US, and the initial period of authorized stay is recorded on Form I-94 (Departure Record) which is a small white card issued by the USCIS upon entering the US. It also records certain later USCIS actions such as change of non-immigrant classification, and, in many visa classifications, extension of permission to remain in the US. Form I-688B, the photo identification Employment Authorization Document (EAD), is evidence of permission to work for some, but not all, visa classifications.
B-1: Visitor for Business – This visa is occasionally held by short-term visiting academics. The individual may not receive any salary, but may receive honoraria for academic activities lasting no longer than nine days at a single academic institution (institution of higher education or affiliated non-profit entity or governmental research organization) and associated incidental expenses, such as reimbursement for travel, lodging and meals. The individual may not accept honoraria from more than five institutions or organizations within a six-month period. B-1 visa holders may remain in the U.S. for 30 days.
B-2: Visitor for Pleasure – This is a tourist visa. For payment purposes, the B-2 visa classification is identical to the B-1 visa. B-2 visa holders may remain in the U.S. for 30 days.
J-1 STUDENT: See International Education & Programs Office
* J-1 PROFESSORS AND RESEARCH SCHOLARS: Exchange Visitor (includes students, professors, research scholars and specialists) – This classification is documented by Form DS-2019, the Certificate of Eligibility for Exchange Visitor (J-1) Status. Visiting professors and researchers may engage in teaching, lecturing or research at Cal Poly. Occasional lectures or consultations at other locations may be authorized in writing by the Program Sponsor only if certain regulatory criteria and procedures are satisfied.
J-2: Dependent (spouse/child) of Exchange Visitor -Employment may be permitted for the maintenance and support of members of the family, excluding the J-1 visa holder, when authorized and noted by USCIS on Form I-94. An EAD is required for employment while in this classification.
*H-1B: Temporary Worker in a Specialty Occupation - This visa may is held by tenure-track faculty members. Employment authorization (limited to the specific employer and the specific employment approved) is inherent in this classification, documented by both the Form I-94 and Form I-797, the Notice of Approval.
H-4: Dependent (spouse/child) of Temporary Worker in a Specialty Occupation -NO EMPLOYMENT IS PERMITTED AT ANY TIME.
O-1: Alien of Extraordinary Ability – This visa is held by individuals with extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by substantial national or international acclaim. Employment authorization (limited to the specific employer and the specific employment approved) is inherent in this classification, documented by both Form I-94 and Form I-797, the Notice of Approval.
O-3: Dependent (spouse/child) of Alien of Extraordinary Ability – NO EMPLOYMENT IS PERMITTED AT ANY TIME.
*TN: North American Free Trade Agreement (NAFTA) Professional – Employment for certain Canadians and Mexicans is permitted in one of several designated professions or occupations for up to one year. The employer is designated by USCIS on Form I-94.
TD: Dependent (spouse/child) of NAFTA Professional – NO EMPLOYMENT IS PERMITTED AT ANY TIME.
WB: Visa Waiver for Business – Citizens of certain designated countries may enter the US without a visa pursuant to this temporary program. For payment purposes, the WB classification is identical to B-1. WB visa holders may enter the U.S. and remain for up to 90 days.
WT: Visa Waiver for Tourism – Citizens of certain designated countries may enter the US without a visa pursuant to this temporary program. For payment purposes, the WT classification is identical to B-2. WT visa holders may enter the U.S. and remain for up to 90 days.
Permission to be employed ceases at the conclusion of a program of studies or at the expiration of the period of lawful stay, whichever is easier, or at the expiration of employment authorization as noted by USCIS. Employment may continue in certain J-1 and H-1B instances pending USCIS approval of a timely request for extension of stay or the replacement of a document on which employment authorization was noted. In no instance may an individual accept employment until he or she holds a visa classification permitting such employment and, where appropriate, such permission has been duly authorized. Employers may be cited, fined, and/or imprisoned for hiring a person ineligible for employment or maintaining an employee who is no longer authorized to be employed.
PERMANENT RESIDENT (IMMIGRANT) VISA Permanent Resident – This is the legal term for an immigrant (a citizen of another country who is permitted to reside and work permanently in the US). They are eligible for all types of employment and are eligible to apply for federal financial aid. Permanent resident status in the US is restricted by federal law to a limited number of qualified individuals. The very stringent qualifications include, for example, marriage to a US citizen, marriage to a permanent resident, or possession of scarce employment skills as documented by a full employment search and as certified by the US Department of Labor. Individuals who meet the qualifications are not automatically accorded permanent resident status; final application must be made to the US Citizenship & Immigration Service (USCIS) at the appropriate time. A permanent resident’s visa is documented by the USCIS on Form I-551 “Alien Registration Receipt Card.” Although no longer green, it is commonly known as the “green card.”
