Hiring International employees on H-1B

visa/status

• The basics: understanding visa/status and other immigration documentation

• H-1B overview

• H-1B flow chart

• Current immigration requirements

• Procedures on Trinity University campus

H-1B visa stamp H-1B status

Visa stamp in passport allows H-1B nonimmigrant to board transportation to the U.S. and apply for admission upon arrival

1. It is a travel document only; a visitor may stay in the United States with an expired visa

2. The State Department grants visas at U.S. Embassies & Consulates abroad.

3. H-1B nonimmigrant can not apply for H-1B visa while in the U.S.

4. Visa processing times vary, depending on the U.S. Embassy or Consulate

5. Entry to the U.S. is not guaranteed even if visa is valid

H-1B immigration status allows a visitor to reside/work in the United States.

1. U.S. Department of Homeland Security grants immigration status upon inspection when one arrives in the United States

2. U.S. Citizenship & Immigration Services (USCIS) may allow us to change or extend that status for those already in the country

Issued at the port of entry upon inspection

Returned at the point of departure from the U.S.

Establishes a foreign national’s ability to be lawfully present in

the U.S.

Must have “Trinity University” annotation on it

Provides the date by which scholar must depart the U.S.

While it looks like a simple card, it is a critical document. It costs

$330 to replace lost or stolen I-94.

I-94 scan/copy kept in ISSS files for record keeping purposes

What is the job title? Is this a tenure-track position?

How long will the visitor stay? Is s/he currently inside the United States?

Will the visitor be paid? How?

What previous entries and visa statuses does the foreign national have in the past?

Did the visitor ever hold J-1 visa/status?

Will the visitor potentially be subject to 212(e) 2-year home residency requirement?

Does the foreign national have a spouse who may need to work?

Will proposed salary meet prevailing wage?

Are there any time constraints?

How soon is anticipated employment start date?

An H-1B “specialty occupation” is an occupation that requires:

Theoretical and practical application of a body of highly specialized knowledge

Employment must: Nonimmigrant must:

Be a “specialty occupation”

Require a minimum of a bachelor’s degree or higher

Scholar holds a U.S. bachelor’s degree or equivalent in the area of specialty

Not be subject to 212E: 2-Year Home Residency Requirement

1) The U.S. Department of Labor (DOL) ◦ Receives, certifies, denies and withdraws Labor Condition Applications

submitted by ISSS on behalf of Trinity University

2) The Department of Homeland Security (DHS) ◦ Accepts Trinity’s H-1B petition and confers H-1B status of the nonimmigrant,

either through change of status or in admission to the U.S.

3) Trinity University ◦ The hiring department Communicates with HR and ISSS if employee is international and

if there are any changes to existing job of H-1B

◦ Human Resources office Provide ISSS office with documentation showing that H-1B

employee is eligible and was offered and received the same benefits programs as other similarly situated employees and records of the offer benefits provided and chosen.

◦ Academic Affairs Issues appointment letter and CUPA faculty survey upon request

◦ Business Office Issues checks for H-1B processing fees

◦ ISSS office Prepares and submits LCA, prepares LCA and supporting

documents available for inspection, submits H-1B petition to DHS, maintains records

4) International worker, H-1B applicant ◦ Is responsible for maintaining status by complying with terms of employment,

notify ISSS of any changes in immigration status and employment terms, and off campus address.

5) The U.S. Department of State (DOS) ◦ Through U.S. Embassies and consulates is responsible for issuing H-1B visas.

Status is for temporary employment

◦ Increments of up to 3 years

◦ 6 years total is permitted by regulation

Employer-specific & department-specific

◦ Cannot work outside of Trinity University

◦ Job changes may require an amended H-1B petition

H-1B employees can have immigrant intent

◦ May apply for a green card while in H-1B status.

◦ Travel and visa applications may be easier

H-4 dependent spouse and children

◦ Can study and can’t work. If employment is important for spouse, J-1 visa may be more appropriate for scholar

In the U.S.: Change of Status

Abroad: Consular Processing

For beneficiaries who are in the United States in another valid visa status:

Filed with U.S. Citizenship & Immigration Services

Status is changed, but no new visa stamp in passport

For beneficiaries who are abroad: Filed with U.S.

Citizenship & Immigration Services

U.S. Consulate specified in petition - must obtain visa stamp to enter United States

Approval mailed to beneficiary - entry permitted only 10 days prior to start date

Aliens who are already present in the U.S. in another nonimmigrant status may be able to change status to H-1B by applying to the USCIS.

Not eligible for change of status within the US are: ◦ Visitors who entered under visa

waiver program (WB or WT) ◦ C (transit) ◦ D (crewman) ◦ J (exchange visitor who is subject to

212(e) ◦ K (fiancé/spouse of U.S. citizen) ◦ S (federal witness)

Employer-specific work authorization: Transferring an H-1B is the same process

as applying for initial H-1B Previous H-1B period is calculated and

deducted from 6 years maximum $500 anti-fraud fee applies Can begin working once USCIS receipt is

received Should not terminate current

employment until receipt for transfer petition is received

H-1B status permits an alien to work for several employers at one time, provided each employer has an approved H-1B petition for the alien in question.

Extension of same employment

Extending an H-1B is a similar process to applying for a new petition

$325 filing fee, no $500 anti-fraud fee

Can continue working for up to 240 days beyond the end date of current H-1B status once USCIS receipt is obtained

Job-specific work authorization:

Changes in employment (department, job duties, major salary change, location of employment, number of hours)

Amending an H-1B is similar process to applying for an extension of H-1B status

$325 filing fee, no $500 anti-fraud fee

Can begin working in new job once USCIS receipt is obtained

Usually combined with an extension

All fees are normally paid by the hiring department

$325 USCIS Filing Fee for Form I-129

$500 USCIS Anti-Fraud Fee for new or transfer H-1Bs (does not apply to extensions or amendments)

Optional Premium Processing costs $1,225

$290 dependent filing fee for H-4 status, if applicable

Please note that ISSS at Trinity does not charge what is commonly know as “ISSS Foreign Scholar Services Fee”. UT for example charges $750 for filing initial H-1B and $500 for filing extension. Immigration attorneys charge $1,500 and up for processing.

The hiring department will need to collect and submit the following:

Copy of appointment letter

Complete H-1B document

◦ Page 2: H-1B confidential worksheet

◦ Page 3: Statement of Actual Wage Determination (w/ Documentation of all Employees in Same Job Classification)

Export Control Form

Memorandum of support (sample)

Must Include:

Job description & minimum requirements

Language about temporary nature of employment

Dates of employment (normally maximum 3 years of H-1B employment is requested)

Beneficiary’s qualifications

Beneficiary’s past immigration status

Return travel guarantee

If Trinity University terminates an H-1B worker prior to the expiration date of his/her H-1B status, the employer must pay the cost of transportation to return the individual to his/her home country

Required by regulation and must be stated within the Department Letter of Support

ISSS reviews documents for completion, contacts department or employee if necessary

CUPA faculty survey is requested from Academic Affairs to obtain median faculty salary survey for specific title in specific field

ISSS files the Prevailing Wage and Labor Conditions Application (LCA) request through the U.S. Department of Labor (DOL) ◦ LCA requests require at least a week for the

DOL to process, another important issue to remember when planning

1. Trinity University attests that employee will be paid at least the prevailing wage

2. Trinity University attests that employment of the H-1B will not adversely affect other workers

LCA memorandum is prepared and posted at HR office and hiring department for 10 business days

Employee’s salary must be at least 100% of the Prevailing Wage

The employee must also meet Actual Wage regulatory requirements, meaning that s/he must be within the range of salaries paid by the Department to all workers with the same job title (accounting for experience and education)

If employee’s salary is not 100% of the prevailing wage, the choices are:

◦ Actual Wage must be raised to meet the PW requirement (Director or Chair likely will need to sign a new support letter)

◦ If salary requirement can not be met, look at other work authorization options (most commonly J-1)

ISSS will prepare ◦ Form I-907 (2 pages)

◦ Form I-129 (35 pages)

◦ Form I-539 (5 pages) – if applicable

Checks are payable to “US Department of Homeland Security.”

Separate checks are required for each fee.

◦ Form I-129: $325 filing fee (all petitions)

◦ $500 anti-fraud fee (new and transfer petitions only)

◦ Form I-907 - $1,225* premium processing

◦ Form I-539 - $290* dependent filing fee

These filing fees can be paid by the Trinity University Department or the beneficiary

Payee address: Premium Processing Service U.S. Citizenship and Immigration Services

California Service Center

24000 Avila Road

2nd Floor, Room 2312

Laguna Niegel, CA 92677

Regularly filed petition approvals are generally taking 4-6 months

Premium Processing – 15 days

ISSS prefers to use courier delivery for petitions filed with USCIS, hiring department will be contacted for FedEx mailing procedures

Department processing times - variable

Prevailing Wage - at least 10 working days

LCA processing - at least 1 week

ISSS Document Preparation – about 1 week

Checks – about 1 week

Receipt of USCIS filing - 2-3 weeks once filed by courier

Approval Notice I-797 -

◦ 4-6 months with standard processing

◦ 15 days with premium processing

USCIS sends the results of decision via email

Employee, hiring department and HR office are notified by ISSS via email

When original notice of action is received, it is forwarded to employee

Notice of Action scan/copy kept in ISSS files

The entire H-1B packet is forwarded to H-1B worker as a scan and paper copy

The H-1B Employee:

May begin, continue or return to employment as of start date on H-1B (or receipt date for transfers)

Comes to ISSS to pick up copy of approval notice and new I-94 card

Completes a new I-9 with HR

ISSS sends a scan of all approval and other necessary visa application documents to employee via email.

ISSS sends originals and copies of approval and other necessary visa application documents to employee via FedEx.

Employee goes to a U.S. Embassy or Consulate to apply for H-1B visa

When H-1B was filed, a copy of petition was mailed to the U.S. Consulate that scholar specified in the original petition.

If H-1B worker’s plans change, and visa can not be obtained at the U.S. Consulate that scholar specified in the original petition, ISSS must be notified in a timely manner so arrangements can be made and petition transfer can be requested from one consulate to another.

Visa processing times will vary depending on the U.S. Embassy or Consulate

See “Visa Wait Times” at http://travel.state.govmp

Check-in with ISSS

Complete an I-9 with department

Notify ISSS if any changes in immigration and employment terms occur

Update address with USCIS

Review immigration documentation for accuracy and validity

Keep track of H-1B periods

All absences (even non-work related) from the US can be adequately documented and the time spent outside the US can be “recaptured” at the time an extension of stay is requested

Detail documentation must be presented to validate departures from and reentries to the US.

Unlike F-1 and J-1 immigration categories, there is no automatic “grace period” for aliens in H status after their period of authorized stay ends, or after their employment terminates.

Aliens in H status may be admitted to the US up to 10 days before the petition validity period and up to 10 days petition validity period, granting the 10-day post-petition period is entirely discretionary.

Aliens may not be employed during either of these 10-day periods.