Current immigration law makes the H-1B category available to any person in a âspecialty occupation,â that is, a position âwhich requires theoretical and practical application of a body of highly specialized knowledge and attainment of a Bachelor or higher degree or its equivalent in the specialty occupation as a minimum requirement.âThe H-1B employee must have met the minimum qualifications for the position, including experience, degree, any license or certificate, and any special requirements, at the time of filing the H1-B petition.H-1B sponsorship is employer-specific. The alien my not change jobs unless a new petition is filed by a new employer. Likewise, any substantial/material change in the terms and conditions of employment (such as a relocation to a new worksite) generally will require that an amended H-1B petition be filed by the employer.H-1B employment may be full-time or part-time, and may be sponsored for periods as short as need be or for as long as three years. Presently workers may obtain H-1B status for an initial period of up to three years, with one extension of status for an additional three year period, for a total of six years. Extensions beyond the normal six years may be obtained where the alien has filed for permanent residence, before the beginning of the sixth year of H status, and where the application for permanent residence has not been withdrawn, revoked or denied.The timeline for employing non-resident aliens on H-1B is determined by the current backlog at USCIS. For the regular process it takes roughly three to four months of lead time. For expedited processing ($2500 extra charge) it takes three to four weeks of lead time. Departments are encouraged to begin the process with the ISO at least five to six months in advance of the anticipated start date of the H-1B employment.
Departments are encouraged to begin the process with the International Services Office at least six to seven months in advance of the anticipated start date of the H-1B employment. Current USCIS processing times are reaching 5.5 to 7 months. In addition, you must add one to two months for our office and our contracted attorneys to assemble all required documentation and file appropriate paperwork with the Department of Labor.
If the employee is eligible to work in the US on another status, providing they are here and are on that work authorization, be mindful of that authorization’s end date. For example, if they are an F1 student and are on OPT authorized to work after they graduate, that authorization is only good for one year in most cases. If you’ve hired them to start work in August but their work authorization ends in October, we will require that the H1B process be premium processed. Premium processing is expensive and in some cases like this example must be covered by the department, not the employee, since the department is requiring the employment to start earlier. Premium processing allows for USCIS to give a response (note, not necessarily make a decision) on the H1B case within 30 days. Even with premium processing, we cannot guarantee a decision will be made in time for there to be no lapse in employment authorization.
Any lapse in work authorizations will cause the employee to be unable to work until the new authorization is obtained!
Departments who are hiring a non-resident alien should be prepared to offer a salary that meets both the prevailing wage and the actual wage requirements. These terms are discussed in more detail in the H-1B Guidance for Employers which you may link to below. The employer must have a real need for someone with the alien’s qualifications. Southeastern must file a Labor Condition Application with the Department of Labor, and on that form must make certain attestations regarding the H-1B employment. The Labor Condition Application (LCA) is discussed in more detail in the H-1B Guidance for Employers. Southeastern must also sign a statement agreeing to pay the cost of return transportation for the alien to return to his or her home country if he or she is dismissed by the Southeastern prior to the expiration of the term of their H-1B status. Once the LCA is approved by the Department of Labor, the H-1B petition is filed with USCIS. Depending upon processing times, and if expedited processing is requested, the alien will receive an adjudication for their case anywhere from a few weeks to several months.Further information and details on departmental responsibility and the application process can be found on the H-1B Guidance for Departments printable handout. Individuals that have been recently hired to work at Southeastern and will also need H-1B status should also fill out the H-1B Employee Questionnaire and Document Checklist that will be sent to the employee once the department contacts our office. Return this form along with the documents mentioned on the checklist to the International Services Office in North Campus Main Building Room 113.
$460 Filing Fee – (for I-129 H-1B Petition) Paid by hiring department
$500 Fraud Fee – paid by hiring department
$2500 Optional Premium Processing Fee – paid by department or employee
Attorney Fees – the International Services Office works with a contracted immigration attorney, David Ware & Associates, to prepare and file H-1B petitions. All fees associated with this are paid by the ISO.
An H-1B petition may be approved for an initial maximum period of three years. Extensions of up to an additional three years may be obtained. Under normal circumstances, the maximum stay permitted in H-1B status is six years.If you are a current employee on the H-1B visa and you are eligible to extend your status, you will need to contact the ISO.If a timely extension is filed (i.e. before the expiration of the current status), regulations allow individuals in H-1 status to continue to work for the same employer for up to 240 days while the extension petition is pending with USCIS.It is ultimately the responsibility of the employee and department to be aware of the expiration date and to file an extension in a timely manner. Note that an employee must be taken off payroll if their current H-1B expires and the extension has not been submitted to USCIS.
The spouse and unmarried children under 21 years of age of H-1B employees may apply for or extend H-4 status. H-4 dependents are not authorized to work in the U.S. except in limited situations. A child may not continue to hold H-4 status upon reaching his or her 21 birthday.
H-1B employees should always consult the ISO before traveling outside of the U.S. A letter verifying employment for travel purposes can be issued to the employer by contacting the Human Resources Office at 985-549-2001.Furthermore, employees requesting a change of status to H-1B (and H-4) within the U.S. should not leave the U.S. while the petition is pending at USCIS. USCIS considers leaving the U.S. while the petition is pending to be an abandonment of the petition.
H-1B employment is specific to the employer for the individual employee for the particular position, department, location, number of hours worked, and duties. The department must contact the ISO as soon as possible PRIOR to any changes in their terms and conditions of employment.H-1B employment authorized for Southeastern does not automatically allow employment with another department at Southeastern, another location, or different employer. Consult the ISO prior to changing the individual’s employment (even within Southeastern), such as change in title, degree required for position, number of hours worked, department, location, or position duties. In most cases, an amended petition will have to be filed with USCIS.
NOTE: Failure to consult the ISO may put Southeastern and the individual employee at risk for sanctions and penalties by the Department of Homeland Security and the Department of Labor.
H-1B employees are NOT allowed to accept honoraria or payment from outside sources.The H-1B worker must be paid the required wage under the Immigration Act of 1990. The H-1B required wage for an H-1B employee must be the higher of the two wages: either the “actual wage,” the wage paid to similarly employed workers at Southeastern, or the “prevailing wage,” paid to similarly employed workers in the metropolitan area as determined by the Department of Labor.Employment of the H-1B employee may not adversely affect the working conditions of workers similarly employed in the department; nor is there at present a strike, lockout, or work stoppage in the department affecting such workers.Southeastern is obligated by law to pay for an H-1B’s return fare to his or her home country if for any reason Southeastern terminates his or her employment prior to the expiration of the H-1B employment authorization. The department must bear the cost of return fare in such a case.The department must consult the ISO immediately if a decision is made to terminate employment prior to the expiration of the H-1B approval. The ISO will then notify USCIS and the Department of Labor that the employee has been terminated in order to release the department of salary/payment obligations. If an employee resigns, the department must also notify the ISO immediately. Consequences of failure to comply with H-1B Labor Condition Application requirements are severe, such as paying back wages for the duration of the H-1B employment.
