REE Employment Opportunities
Employment of Noncitizens
Hiring Noncitizens to Fill Permanent Positions
Background
Permanent employment in the Federal Government is generally restricted
to United States citizens and nationals. Only under rare and unusual
circumstances may noncitizens may be hired and the approval process
may take up to 12 months.
Competitive versus Excepted Service
Agencies wishing to hire noncitizens to positions within the competitive
service must follow normal selection procedures and ensure applicants
meet requirements outlined in all three of the following:
- Annual appropriations laws prohibiting the use of funds
to employ certain noncitizens;
- Immigration laws governing employment
eligibility;
- Executive Order 11935 (September 2, 1976) restricting
employment of noncitizens in competitive service positions.
Agencies wishing to hire noncitizens to positions within the excepted
service or the Senior Executive Service must conform with the first
two items in this list (i.e., appropriations and immigration restrictions).
The Executive Order restrictions apply only to competitive service
positions.
Annual Appropriations Act
Every Appropriations Act since 1939 has included a ban on using appropriated
funds to employ noncitizens within the continental United States (i.e.,
the restriction does not apply to positions located in Hawaii, Puerto
Rico, the Virgin Islands, Alaska, and the Isthmus of Panama). OPM has
no authority to regulate, enforce, or grant further exceptions to this
ban. The following groups of people are exempt from this ban:
- Persons who owe permanent allegiance to the United States
(e.g., natives of American Samoa and Swains Island);
- Aliens from
Cuba, Poland, South Vietnam, and countries of the former Soviet
Union lawfully admitted to the United States for permanent
residence;
- South Vietnamese, Cambodian or Laotian refugees paroled into the
United States after January 1, 1975;
- Nationals of the People's
Republic of China who qualify for adjustment of status (indicated
on their resident alien card as EC6) pursuant
to the Chinese Student Protection Act of 1992;
- Citizens
of Ireland, Israel, or the Republic of the Philippines.
- Nationals
of countries currently allied with the United States in a defense
effort (e.g., NATO allies).
Although an alien may be authorized to work and be paid
from agency appropriated funds, that individual is
still subject
to the provisions
of immigration law and may be subject to requirements
of Executive Order 11935 (discussed below).
Immigration Law
For work to be performed in the United States, private and public
employers may only hire an individual who is:
- A citizen or national of the United States;
- An alien admitted
for permanent residence;
- An alien lawfully admitted for temporary
residence and granted an employment authorization document by the
U.S. Citizenship and Immigration
Services, Department of Homeland Security;
- An alien admitted or paroled
into the United States as a refugee and granted an employment authorization
document;
- An alien granted asylum and granted an employment authorization
document;
- A fiancé, fiancee, child, or parent
of an alien who was admitted under certain conditions; or;
- An
alien who is authorized employment with a specific employer incident
to status.
(H-1B Specialty Worker or TN).
Although an alien may be authorized to work under immigration laws,
that individual is still subject to appropriations act restrictions
and may be subject to requirements of
Executive Order 11935 for Federal employment.
Executive Order 11935
Executive Order 11935 states that only United States citizens and
nationals may compete for positions within the competitive service.
This restriction applies to all agencies with competitive service positions
any place in the world.
Exceptions to this Rule
OPM may grant exceptions to this rule. If an agency can show that
no citizens are basically qualified and available to fill a specific
competitive service position, OPM may allow the hiring of a noncitizen.
Submitting a request for exception: According to OPM, very few of
these exceptions have been approved in the past and it is unlikely
that OPM will ever allow the hiring of noncitizens to become a commonplace
event. Pursuing this option might work in a rare and unusual instance,
but it should not be viewed as a solution to broader employment problems.
Agencies wishing to hire a noncitizen must direct their request through
the Department to OPM's Washington Service Center. (Dorothy Miller
is the specialist assigned to USDA; she may be reached by phone at
202-606-1407).
Content of the request: The agency request must include:
- Proof that the vacant position was announced extensively
and intensively, including use of paid advertising in trade and professional
journals, and that
the announcement remained open for a considerable length of time (one month
or longer). It is not usually necessary to have made repeated unsuccessful
attempts
to fill the position; one vigorous, but fruitless recruiting campaign should
be sufficient;
- Proof that no citizens who are basically qualified for
the position could be located, or, if they were located, they were
not interested in the position;
- Proof that the position is unique
and that few, if any, United States citizens possess the necessary
skills and qualifications;
- Identity of the noncitizen proposed
for the position; the individual must meet all requirements outlined
in appropriations and immigration
laws.
Approving authority: The Director of OPM's Washington Service Center
will approve requests to hire noncitizens.
Type of appointment authorized: A noncitizen hired in the absence of qualified
citizens may only be given an excepted appointment under Schedule A, authorized
by 5CFR 213.3102(bb).
Impact of this action on the position: A position filled in this
manner is withdrawn from the competitive service. The position will
remain in the excepted service as long it is filled by a noncitizen.
Impact on the employee: The noncitizen thus hired will not acquire
competitive civil service status by means of this appointment. The
employee may not be promoted or reassigned to a position in the competitive
service, except in situations where a qualified citizen is once again
unavailable and another Schedule A appointment is made.
For Further Information:
Lorraine Thaden
Human Resources Specialist
REE Policy Branch, Human Resources Division
Administrative and Financial Management
301-504-1392 or LThaden@ars.usda.gov
Last Updated: July 12, 2004
Related References:
Hiring Noncitizens to Fill Nonpermanent Positions in the Excepted
Service.
|
