EMPLOYMENT OF NON-CITIZENS
Sections
10.20.06 Procedures for Employment of Non-Citizens
10.20.01
PURPOSE
This subchapter sets forth information and procedures for employment
of non-citizens.
10.20.02
SCOPE
This subchapter applies to the employment of non-citizens at NIST.
10.20.03
POLICY
It is NIST policy to hire citizens of the United States of America
except under very limited circumstances.
10.20.04
AUTHORITIES
Executive Order 11935, dated September 2, 1976, restricts the employment
of non-citizens. Title 5, United States Code (USC) Chapter 21 and
Title 5, Code of Federal Regulations (CFR) Part 213 state the regulations
with regard to hiring non-citizens.
10.20.05
RESPONSIBILITIES
a. The Office of International and Academic Affairs (OIAA) is
responsible for all matters relating to visa requirements or immigration
and naturalization regulations. OIAA is responsible for all administrative
procedures pertaining to the U.S. Citizenship and Immigration Services
(USCIS) and for ascertaining that the prospective appointee has the appropriate
status with the USCIS.
b. The Department of Commerce (DOC) Office of Security (OS) is responsible for information on issues relating to security clearances and investigations regarding non-citizen employment.
c. The Human Resources Management Division (HRMD) is responsible for matters relating to the recruitment, hiring, and employment of non-citizens. HRMD is primarily concerned with the appointment of non-citizens from the standpoint of the non-citizen's country of origin and the availability of any qualified U.S. citizens. The requirements and procedures outlined below pertain only to the recruitment, hiring, and employment of non-citizens. If the non-citizen is not in possession of a permanent resident visa, the process can take several years.
d. The Department of Labor is responsible for approving the appointment of the non-citizen if the non-citizen is not in possession of a permanent resident visa.
e. The USCIS is responsible for approving the visa request of
the non-citizen.
10.20.06
PROCEDURES FOR EMPLOYMENT OF NON-CITIZENS
a. The division prepares and sends to HRMD the following:
-- Standard Form (SF) 52, Request for Personnel
Action;
-- Form CD-516, Classification and Performance Management
Record;
-- Position Description;
--Draft of the paid advertisement; and
--Complete information needed for the Vacancy Announcement.
b. A vacancy announcement must be posted for at least 30 days
and paid advertisements must appear in a minimum of two broad circulations
such as local
newspapers, professional journals, professional society circulars,
bulletins, etc. The division also contacts subject-matter experts
in industry, academia, etc. (via letters, fax, e-mail), to request referral
of any known qualified, interested U.S. citizens. Copies of any such
correspondence should be forwarded to HRMD for inclusion in the case file.
c. Non-citizens may apply to the vacancy announcement but can only be considered for employment if no minimally qualified, interested U.S. citizens apply. All applicants (citizen and non-citizen) must submit the documentation required in the vacancy announcement.
d. If no U.S. citizens apply who are minimally qualified for the position, the division prepares a justification memorandum regarding the proposed employment of the non-citizen. The memorandum is sent to OIAA through the OU office. The memorandum explains that a vacancy announcement was issued and advertisements were placed but no minimally qualified U.S. citizens applied. The memorandum must also explain benefits to the government if the non-citizen is hired. This memorandum must be approved by OIAA before moving forward with the remainder of the hiring process. OIAA will send a copy of the approved memorandum to HRMD. See Appendix A for a sample.
e. The division submits Optional Form (OF) 306, Declaration for Federal Employment, to HRMD.
f. After OIAA approves the justification memorandum, HRMD submits
the non-citizen's name to OPM for certification using Standard Form
(SF)-59, Request for Approval of Non-Competitive Action. Supporting
documentation as well as copies of applications from non-qualified U.S.
citizens must be included. OPM certification can take one to two
months to process.
g . A background investigation is required for the employment of a non-citizen. The background investigation must be completed and sent to the DOC Office of Security DOC before the non-citizen can be appointed to the position. Forms required are:
-- SF-85P, Questionnaire for Public Trust Positions;
-- SF-87, Fingerprint Chart;
-- OF-306, Declaration for Federal Employment;
-- Job application;
-- Fair Credit Release;
-- Declaration of Intent; and
-- CD-79, Request for Security Clearance (used for
the justification of hiring the non-citizen).
Form CD-79, Request for Security Clearance, must include the type of appointment; the position title, career path/pay plan, series, and pay band/grade; and what qualifications the non-citizen possesses to justify the appointment. The sensitivity level of the position must be low risk, there can be no access to national security information or restricted areas, nor can the individual have policy-making responsibilities. The division is charged the cost of the investigation whether or not the applicant is appointed. The investigation process takes approximately four to six months to complete.
h. Upon certification by OPM, if the non-citizen is in possession of a permanent resident visa and provided that the background investigation is satisfactorily completed, the appropriations ban and immigration rules are met, and the pre-appointment information has been provided (i.e., OF-306), an offer of employment may be made. The non-citizen will be appointed to a position in the excepted service. This appointment does not give the employee eligibility for any other position including promotion or reassignment.
Upon certification by OPM, if the non-citizen is not in possession of a permanent resident visa, additional approvals must be obtained from the Maryland Department of Labor and the United States Department of Labor and the USCIS using Form ETA-750, Application for Alien Employment Certification, Parts A and B. Form ETA-750 Parts A and B must be completed in duplicate and submitted to HRMD for further completion and review. HRMD, in turn, submits the necessary paperwork to the Maryland Department Labor and from the United States Department of Labor. After Department of Labor certification is approved, HRMD sends the original certification with all attachments to OIAA. This approval can take up to several years.
i. OIAA processes Form I-140, Immigration Petition for Alien Worker, and original labor certification with USCIS to ascertain the non-citizen's eligibility to make application for permanent resident status. There is no time limit for submitting Form I-140 to the USCIS after labor certification is approved. The USCIS certification of Form I-140 can take up to several months.
j. After the USCIS certifies the eligibility of the non-citizen to apply for permanent resident status and if a visa is available (non-citizen's priority date has been reached), the non-citizen files Form I-485, Application to Register Permanent Residence or Adjust Status, with the USCIS. At the same time, the non-citizen may request employment authorization from the USCIS on Form I-765, Application for Employment Authorization. After the USCIS approves employment authorization, an offer of employment may be made. The USCIS approval of permanent resident status can take one year or longer.
k. When appointed, a non-citizen will be given a permanent (i.e., indefinite) excepted service appointment if they have declared their intent to become a U.S. citizen and they have presented proof of filing. If the non-citizen has not declared their intent to become a U.S. citizen, a temporary excepted appointment will be made not-to-exceed one year (or the non-citizen's USCIS employment authorization expiration date, whichever comes first). As long as the non-citizen is in possession of a valid employment authorization from USCIS, NIST may extend the temporary appointment.
l. Once the non-citizen has received their permanent resident visa, they may be converted to an excepted indefinite appointment.
m. When the non-citizen becomes a U.S. citizen, they are then
eligible to compete for a permanent appointment in the competitive service.