SP 3-10c – Employment of Foreign Nationals

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SP 3-10c

APPROVED: July 9, 2018
EFFECTIVE: July 9, 2018
REVISED: January 10, 2019
REVISED: December 11, 2024
RENUMBERED: December 11, 2024

REFERENCE(S): Immigration Reform and Control Act of 1986; Immigration Act of 1990; Illegal Immigration Reform and Immigrant Responsibility Act of 1996

APPROVED:
/ Joe Garcia /
Joseph A. Garcia, Chancellor

Application

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

Basis

The appointment of foreign nationals is a complex matter involving the Departments of State, Labor, and Homeland Security. 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). It is essential that all those with authority to recruit and to hire understand the procedures, time frames, and restrictions involved in the appointment of foreign nationals and plan accordingly.

Procedure

All appointments, regardless of the employment type, are contingent upon the prospective employee obtaining the appropriate work authorization. The term of appointment may not exceed the duration of the employee’s work authorization. Under no circumstance should there be any unauthorized employment permitted by any foreign worker within the System. 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 or College President, or their respective designee, are not binding on the System.

Foreign national employees may perform only those functions and responsibilities that are consistent with the appointment and authorized by the U.S. Citizenship and Immigration Services. They may begin performing services only after having obtained all necessary government approvals to be employed at the College or System Office.

A licensed attorney authorized by the Colorado Attorney General’s office to provide immigration services shall advise the System on immigration matters. The authorized attorney may review eligibility of prospective cases with a College or the System Office and provide counsel and advice. Once a decision is confirmed to proceed, only approved counsel shall be retained to prepare the necessary immigration case for the College or System Office. Current or prospective employees are responsible for seeking personal legal advice for their needs. Such counsel is not required to be the approved legal counsel for the System.

Employment Visas:

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.

This procedure and its guidelines do not replace standard hiring protocols, they are in addition to these processes. In all cases, regardless of visa type, the College or the System Office must conduct a search if otherwise required for the position. Under no circumstances will CCCS support filling a position requiring an immigration petition process through a direct appointment. Foreign national employees will be paid the same wage level paid to all other employees in similar positions with similar experience and qualifications, or the prevailing wage for the occupation in the area of employment, whichever is higher.

The System’s success in obtaining temporary and permanent visas for employees is dependent upon the timely filing of the appropriate documents with the applicable U.S. government agencies. Colleges or the System Office must ensure, prior to making a formal offer to a foreign national, that they are eligible for the non-immigrant classification necessary to accept the appointment. Once eligibility is established, the College or System Office must ensure understanding of the procedures and time frames required for the visa requested and facilitate the timely filing of applications.

All legal support for the College or System Office must be conducted by the authorized counsel. 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. The costs paid by the System should not be sought or recovered from the foreign national, including in the assessment of assigned salary.

Employment-Based Residence Status:

The decision to pursue employment-based 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 regular positions, as defined in Board Policy 3-10, Administration of Personnel, with a proven history of being hard-to-fill or which require special skills. Sponsorship for permanent residence may be undertaken only if there is sufficient justification that the proposed foreign national employee is uniquely qualified through experience, skill, and background or training to fill the available position. The decision to pursue permanent resident status for an employee is dependent on the interest of the System. Permanent resident status cannot be pursued solely for the benefit of the foreign national employee.

With approval of the Chancellor or College President, or their respective designee, 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 or College President, or their respective designee. 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 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 any provision or requirement of this procedure at any time and the change shall become effective immediately.