Immigration Policies and Procedures

Immigration Policies and Procedures

Ensure you are in compliance with federal regulations concerning the employment and eligibility of immigrant and nonimmigrant aliens and visa types, as well as the sponsorship of permanent residence for international employees.

Employment of Noncitizens

The University must comply with the provisions of the United States Department of Homeland Security (DHS), as amended, and the Mutual Educational and Cultural Exchange Act of 1961, governing the employment of immigrant and nonimmigrant aliens.

Immigrants are those who have been granted permanent resident status but who are not U.S. citizens. They may engage in all forms of employment.

Nonimmigrants are those who are admitted temporarily for specific purposes and periods of time. They may be employed by the University only if the DHS has authorized them to work in the U.S.

  • Nonimmigrant Status

    Nonimmigrants who are eligible to work normally fall into three categories.

    1. International Students with F-1 Visas
    International students are aliens temporarily admitted to this country under DHS rules to study at a recognized educational institution approved by the Attorney General of the United States. International Students can be identified by the code F-1, which appears on their I-94 (F-2 for spouses and children).

    • International students who are taking a full course of study and otherwise maintaining a valid F-1 status may hold any on-campus employment, limited to hours listed below. International students do not require DHS permission to accept on-campus employment.
    • The F-1 visa normally limits students to 20 hours of work per week during academic sessions. Under special circumstances, certain F-1 students may qualify for exceptions. Contact the International Student and Scholar Programs (ISSP) for assistance. During the summer or when school is not in session, international students on F-1 visas may work full-time.
    • F-1 visas must be petitioned by UVA.

    Spouses or children with F-2 visas may not be employed (unless specifically authorized by DHS and issued an Employment Authorization Document [EAD card]).

    2. Nonimmigrants with J Visas

    Nonimmigrants with J-1 visas (J-2 for spouses or children) are students, scholars, trainees, teachers, professors, specialists, or similar individuals temporarily admitted to this country under DHS rules to participate in a program designated by the United States Information Agency.

    • Nonimmigrants with J-1 visas who are students may be employed part-time on campus if work is authorized by their sponsor (this requires a confirmation letter from the sponsor of the ISSP).
    • J-1 visas must be petitioned by UVA.

    Spouses or children with J-2 visas must have DHS permission to seek employment in the U.S. before they may be employed.

    3. Nonimmigrants with H Visas

    Individuals admitted to the United States as “workers of distinguished merit,” “temporary workers,” or “trainees,” may be employed at the University under special circumstances on a temporary basis. The DHS approval notice must specify UVA as the employer.

    • H-1 visas must be petitioned by UVA.
  • Benefits and Taxes

    Noncitizens who are employed are eligible for the same benefits as other employees in comparable positions.

    Nonimmigrants on F-1 or J-1 visas who have been authorized to work are not subject to Social Security withholding (FICA) for a limited period of time. However, all nonimmigrants must file federal income tax withholding, even if their income is otherwise exempt from taxation. The University is required to withhold the correct amount of tax from the individuals’ paychecks. If the individuals are tax exempt, they may receive a refund of all taxes withheld after filing an annual income tax return.

    Nonimmigrants on H visas are subject to Social Security taxes and income taxes, unless tax exemption is specifically provided by treaty or convention.

    Permanent residents (immigrants) and spouses or children (with J-2 visas) of individuals with J-1 visas must participate in Social Security and income tax withholding.

  • Visa Types

    A-1 Diplomat, Government Official, and immediate family - Authorization for work must be approved through diplomatic channels, using FORM I-566; A-1 students cannot work on campus unless they have received work permission as noted above

    A-2 Other Government Officials and immediate family - same as A-1

    F-1 Student - UVA student enrolled full-time in an academic program, or who will be enrolled at UVA in the next semester, can work on campus with a current FORM I-20 issued by the UVA International Studies Office

    Non-UVA student, or a UVA student who has graduated, may work only if approved by the DHS for practical training and holding EAD card from the DHS stating the authorized dates of employment, and only if the employment is related to the field of study in which the student just graduated

    H-1 Temporary Worker of Distinguished Merit and Abilities

    H-1A Registered Nurse Employed by Petitioning Sponsor

    H-1B Temporary Worker in a Specialty Occupation

    J-1 Exchange Visitor Program Participant

    J-2 Exchange Visitor’s Dependent

    K Fiancé of U.S. Citizen - May be employed, but the marriage must be concluded within 90 days of entry to the U.S. at which time the K visa holder applies for conditional permanent residency.

    O-1 Person of Extraordinary Ability

    TN Canadian/Mexican Citizen under NAFTA

    IM Resident Alien

    EAD Nonimmigrant with Employment Authorization Document

  • Job Postings/Advertisements Related to Permanent Residence Sponsorship

    Before sponsoring a non-U.S. citizen employee on a nonimmigrant visa for permanent residency (green card), the petitioning employer may be required to complete unique steps for recruitment of that position.

    Advertising Requirements

    Immigration courts and the Department of Labor hold stringent advertising requirements.

    • To ensure an employer’s recruitment process does not discourage U.S. workers from applying for a position, an employer can only include its minimum requirements in its advertisements, not its preferences
    • Any preference listed in an advertisement is viewed by the U.S. Department of Labor as a requirement, and employees being sponsored for a green card must meet that requirement prior to assuming the position in question, or they will not be eligible for the green card process

    To ensure compliance with federal regulations concerning the sponsorship of permanent residence for international employees, we strongly encourage departments to eliminate preferences from job postings. We also encourage you to forward copies of postings to Human Resources  Immigration Services (immigration@virginia.eduprior to advertisement, so we have the opportunity to review the posting and advise the department of potential issues related to immigration sponsorship.

Recruiting & Hiring Temporary Visa Holders

Departments seeking to hire candidates who are not U.S. citizens or permanent residents, and who seek employment in the U.S. under the terms of a temporary, nonimmigrant visa (i.e. H-1B), should be aware of the anti-discrimination provisions of the Immigration and Nationality Act (INA) (see 8U.S.C. §1324(b)). The provisions prohibit four types of conduct:

  1. Citizenship or immigration status discrimination
  2. National origin discrimination
  3. Unfair documentary practices during employment eligibility verification (Form I-9) process (document abuse)
  4. Retaliation for filing a charge or asserting rights under the anti-discrimination provisions

  • Citizenship Status Discrimination

    Discrimination involves protected individuals, including U.S. citizens, permanent residents, and documented immigrants such as asylees and refugees, that are not hired because of their real or perceived immigration or citizenship status, or because of their type of work authorization.

    • This prohibition does not extend to discrimination that is otherwise required in order to comply with law, regulation, executive order, or federal, state, or local government contract (see 8 U.S.C. §1324 b [a][2][c]).

    • All work-authorized individuals, including many nonimmigrant visa holders, are protected under the INA’s prohibitions against national origin discrimination and document abuse (see 8 U.S.C. §§1324 b [a][1][A] and [a] [6]) - even though work-authorized visa holders are not protected from citizenship status discrimination. Requests to produce a particular document or documents in order to confirm visa status or requests for specific documents to establish employment eligibility might be the basis of an applicant’s claim of document abuse.

    • If applicants believe that they were rejected for employment on the basis of national origin, they may allege national origin discrimination.

  • Permissible Interview Questions

    Recruiters may ask the following questions during the pre-employment stage:

    • Will you now or in the future require sponsorship for employment visa status (e.g. H-1B)?

    • Are you currently authorized to work in the U.S on a full-time basis without restriction?

    Recommended by the U.S. Department of Justice Civil Rights Division - Office of Special Counsel for Immigration Related Unfair Employment Practices, which enforces the anti-discrimination provisions of the INA.

  • Employers Duty to Sponsor

    According to the Office of Special Counsel employers may decide:

    • Not to recruit
    • To hire individuals based solely on their need for visa sponsorship now or in the future

    A decision not to hire an applicant needing sponsorship based on the employer’s financial obligation associated with sponsorship is not considered discriminatory. Such decisions must be made without the intent to discriminate against the applicant based on their national origin or to retaliate against a person for activity protected under federal law.

    An employer has no duty to sponsor or hire people who will need sponsorship in the future.

    An employer may draw lines in its decision-making that are more favorable to certain individuals. For examples, some individuals may not need sponsorship at the time because their student status or another path authorizes them to work; however, they will need sponsorship sometime in the future. In this case, an employer can make any decision on whether to hire the individuals, including the decision to hire them and then terminate employment once they are no longer authorized to work (employer would have no duty to sponsor the individual when the time comes)

  • Job Postings

    Special Counsel has advised that employers may choose to exclude all candidates needing sponsorship, as well as notify prospective job applicants in job postings that they are unwilling to sponsor nonimmigrant visas by using the following language: “This position is not eligible for immigration sponsorship.”

Forms & Resources

Procedures for Making Emergency (Time-Sensitive) Payments to International Visitors: Rules for expediting payments to foreign visitors so funds can be made available to them immediately when they arrive

UVA Sponsored Immigration: Who is authorized to act on behalf of the University on matters of immigration

Academic Honorarium Payments to Short-term, Nonimmigrant Alien Visitors

Scholarship/Fellowship Payments to Foreign Nationals: Guidance for applying taxes to scholarship/fellowship payments made to foreign national students and fellows, in order to comply with U.S. Immigration and Tax laws