Immigration Rules, Rights, & Responsibilities for International Employees in H1-B Status
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This information is directed to those SCSU employees who hold H-1B visa classification. If you are the recipient of one of this visa you have been granted permission by U.S. Immigration and Naturalization Service (INS) to be employed by Southern Connecticut State University for a specific period of time, in a specific position.
- H-1B Status Granted through Change of Status from within the U.S.
If you were granted a change in status to H1-B you were issued Form I-797 by the U.S. Citizenship and Immigration Services (USCIS). Please be aware that Form I-797 is not a visa, although it does permit you to work for SCSU for the time period specified on the form. A visa is purely an entry document issued at a U.S. Embassy or Consulate outside the U.S. which covers a page in your passport.
The next time you travel outside of the U.S., you need to apply for a visa in order to return in H-1B status. To apply for a visa, you will need to take the original Form I-797 (which the Office of International Education can lend to you) along with any other documents required by the U.S. Embassy or Consulate outside the U.S. where you will apply for the visa. We recommend that you visit the appropriate Embassy’s or Consulate’s website for their requirements.
Once you have obtained a new visa in your passport, you may apply for admission to the U.S. at a port of entry. An Immigration Officer will examine your documents and stamp your Form I-94. The period of validity on your Form I-94 should normally coincide with the dates on the Form I-797, although it is a good idea to ask the immigration officer to grant you a ten-day grace period on your Form I-94. (This will not allow you to work ten extra days, but it will allow you to remain in the U.S. ten days beyond the end of the employment period.) This form is very important as it signifies proof of your H1-B visa status, legal entry into the U.S., and authorization to be employed by Southern Connecticut State University.
- Approval of for H1-B Petition While Outside the U.S.
If you were outside the U.S. at the time an H1-B visa petition was filed on your behalf, you must wait until SCSU obtains Form I-797, Notice of Approval, before you are eligible to apply for a visa with which to enter the U.S. and assume begin your employment. Once the USCIS has notified SCSU that it has approved our petition, we will send the original Form I-797, along with a copy of the petition, to your address outside the U.S. You must take this document to apply for your visa and these documents to the U.S. Embassy or Consulate which serves closest to your place of residence. Check out the U.S. State Department’s list of Embassies and Consulates with online information about application procedures and requirements.
Once you have obtained a new visa in your passport, you may apply for admission to the U.S. at a port of entry. An Immigration Officer will examine your documents and issue you Form I-94. The period of validity on your Form I-94 should normally coincide with the dates on the Form I-797, although it is a good idea to ask the immigration officer to grant you a ten-day grace period on your Form I-94. (This will not allow you to work ten extra days, but it will allow you to remain in the U.S. ten days beyond the end of the employment period.) This form is very important as it signifies proof of your H-1B visa status, legal entry into the U.S., and authorization to be employed by SCSU.
- Special Information for Canadian Citizens
Citizens of Canada are not required to obtain a visa to enter the U.S. This is true not only for tourist visas, but also for other non-immigrant status visas which permit employment, such as the H1-B. However, the H-1B employment does require a petition to the USCIS. If you are in the U.S. in another nonimmigrant visa category, we will ask for a change of status to H-1B. We will notify you when we receive the approval notice from the USCIS.
If you are in Canada, we will forward the approval notice to you. Because you do not need a visa, you will simply present Form I-797 to the Immigration Officer at the port of entry (if driving) or to pre-flight inspection at the airport.
- Employment Limitations
It is important for you to understand that you are only authorized to work for SCSU. The H1-B status is employer and position specific. If you discontinue your employment with SCSU at any time prior to the end of the approved employment period validity date, you may be considered out of status and may be required to depart the U.S. (without a grace period). If you accept a position with another employer, you may be required to begin work at that institution as long as your new employer files another H1-B petition on your behalf in order for you to be employed by them. You should inquire with your new employer concerning details.
If you are offered the opportunity to change positions within SCSU, you must contact the OIE before you assume your new position. Depending upon the circumstances of the change, we may be required to submit a new and amended petition to the USCIS which will allow you to hold a different position.
- Payment of the U.S. Taxes
International employees holding H1-B visa status are considered as residents of the U.S. for tax purposes, and as such are subject to Social Security (FICA) taxes as well as federal income tax. If you have been working at SCSU in another nonimmigrant visa category, you will probably need to complete a new Form I-9 (and, probably, a new W-4 as well) and make a revision to show Form I-9 to indicate the change in your non-immigrant visa and tax status. You may obtain these forms from your department, Business Service Center, or Human Resources, and return them to Human Resources. Please attach a copy of you I-797 Notice of Approval.
Individuals in H1-B status are entitled to file their income taxes as permanent residents for tax purposes once they have met the IRS definition for “substantial presence.” See IRS publication 519 for an explanation of substantial presence.
- Maximum Presence in the U.S.
The maximum allowable time for any individual to remain in the U.S. in H1-B status is six years. Immigration regulations permit an employer to ask for a maximum of an initial three years (some departments request less time, especially if funding is uncertain), with extensions of up to an additional three years possible. At the end of the six year period, the holder of an H-1B visa must do one of the following:
a) Depart the U.S for a period of not less than one year before he/she is eligible for a new H-1B status or visa;
b) Change to a different nonimmigrant visa category (if eligible); or
c) Obtain permanent residence in the U.S.
- Extensions of Stay
You have permission to be employed at SCSU until the expiration date listed on Form I-797, H-1B Approval Notice, or your Form I-94. If you are offered an opportunity to extend your employment at SCSU, we must file a request for extension with the USCIS. To remain in valid status, this extension request must be received at the Service Center in Vermont on or before the date your current stay will expire, though it is preferable to file it at least ten days earlier. H-1B extension petitions can be filed a maximum of six months before the expiration of current status. Requests for extensions of stay must be made by your department on your behalf. It may take several months for the USCIS to process an extension.
- Responsibility for Compliance with Immigration Regulations
It is your responsibility to comply with all federal immigration regulations which govern your specific nonimmigrant visa classification. Remaining in the U.S. beyond the designated period granted by the USCIS could subject you to a bar from re-entering the U.S. for a period of up to ten years. Please do not jeopardize your legal right to remain in the U.S. by accepting unauthorized employment, failing to apply for an extension of stay as necessary, or violating your immigration status in some other manner.
The OIE is available to answer any questions you might have related to your immigration status and responsibilities. Please do not hesitate to contact the OIE if you need assistance.