H1-B Status and Its Regulations: Information for Hiring Departments
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This information is designed to assist SCSU departments which wish to employ a foreign national in a faculty or professional staff position. It covers the process of sponsoring a foreign national for the H1-B temporary worker non-immigrant category which is widely used by colleges, universities, and other employers for professional positions requiring the attainment of a bachelor’s degree or higher for entry into the occupation.
Please read the information in its entirety, complete the H1-B Application Packet, and submit it with the following documents to the OIE as soon as the job offer has been accepted:
- A detailed position description which includes the job duties and responsibilities, minimum education, professional requirements and salary offered
- A copy of any job advertisement you have placed.
If you have any questions, please call 203-392-6756 or send an email to email@example.com.
Note: The process of obtaining approval of an H-B1 petition is a lengthy one. Please allow at least five to six months for approval. If there are complicating factors, a longer period of time might be required, and it may be necessary to request expedited processing for an additional fee.
Unless the foreign employee is already in H-1B status, he/she will not be able to start employment at SCSU until our application is approved by the immigration service.
1) About H-1B Status
H-1B is a non-immigrant status. It is one of the most important and widely-used non-immigrant categories for the employment of foreign nationals in professional positions in the U.S. H-1B status is used by U.S. colleges and universities to employ foreign nationals in “specialty occupations”, defined under immigration law as “one which requires the theoretical and practical application of a body of highly specialized knowledge requiring the attainment of a bachelor’s or higher degree as a minimum for entry into the occupation.”
Although there is a wide range of occupations whose entry-level requirements fit the law’s description for H-1B status, the immigration service has firmly established that the following categories of workers fall within the H-1B category: health care professionals, university professors and other teachers, engineers, systems analysts and other computer professionals, scientists, librarians, psychologists, journalists, editors, technical publications writers, management consultants, market research analysts, financial analysts and other persons in advanced business specialties, accountants, lawyers and foreign law advisors, architects, and other service professionals.
Over the past ten years, the U.S. Congress has passed numerous pieces of legislation related to H-1B status. Many of these new laws placed new requirements on U.S. employers who wish to hire H-1B foreign workers. The most significant of these require employers to obtain a prevailing wage for the position from the state department of labor, then to file a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL), and to establish Public Inspection Files. Most non-academic employers are also required to pay an additional “training fee” to the immigration service when filing an H-1B petition. This fee, which is in addition to the regular filing fee, is intended to be used to train U.S. workers.
The number of H-1B petitions which may be approved on an annual basis is established by Congress. Following an intense lobbying effort by business and education, Congress agreed to increase the number, but because of a “sunset provision,” the number has returned to 65,000 per year. Fortunately, Congress has recognized the importance of the H-1B non-immigrant status to the teaching and research mission of colleges and universities and has exempted us from the H-1B workers as necessary while avoiding payment of the training fee.
The fact that we are exempt from annual quotas and the payment of additional fees, however, does not exempt us from complying with the federal regulations which govern this non-immigrant category.
2) Duration of the H-1B Category
The H-1B category allows a foreign national to be employed in the U.S. by a specific employer, for a specified period of time, in a specific position, in a specific location. Although an individual may hold H-1B status for up to six years, the immigration service will only grant this status in increments of up to three years at a time. Southern has traditionally petitioned for one-year H-1B status for new faculty, and two years for continuing faculty. At the end of the six year period, in order to continue his/her employment in the U.S., the foreign employee will have had to obtain U.S. permanent residence (green card) or will be forced to depart the U.S. for at least one year before being eligible for a new H-1B status.
3) Eligibility Requirements
Under most circumstances, H-1B regulations do not currently require an employer to have advertised the position prior to offering the position to a foreign national. (SCSU Human Resources and Affirmative Action policies, however, may require a search to be completed for these types of positions).
H-1B status is governed by federal laws and regulations, with requirements for eligibility. The position offered must require, at a minimum:
- Completion of a U.S. bachelor’s degree or a foreign degree equivalent to a U.S. bachelor’s degree; or
- A combination of education, specialized training, and experience which are equivalent to a bachelor’s degree or higher degree.
The foreign employee must be in possession of at least the minimum requirements for the position. In some cases, the employee will have to have his/her academic or professional credentials evaluated by an outside credentialing agency recognized by the immigration service. If state or federal licensing or certification is required for the position, the foreign employee must hold the specific license or certificate.
4) Dual Intent Nature of the H-1B Category
The H-1B category is different from most others, especially F (student), J (Exchange Visitor), and B (visitor). Unlike most other non-immigrant categories, the U.S. Government allows “dual intent” for H-1B holders. Most of the 45+ non-immigrant categories require a foreigner to maintain a permanent residence in his/her home country and to verify that he/she has no intention to abandon that residence or to apply for U.S. permanent residence. Foreign workers in H-1B classification are not held to these requirements and are permitted to make an application for U.S. permanent residence while maintaining H-1B status. This is a very important distinction, especially for colleges and universities with foreign workers in tenure-track faculty and permanent research positions, as it permits the university to sponsor the foreign worker for U.S. permanent residence.
In the event an H-1B worker is dismissed from employment prior to the end of the authorized stay requested by the employer, regulations require that the employer pay reasonable costs to return the employee to his or her last place of residence outside the U.S.
Labor Condition Application Attestations:
H-1B regulations also protect U.S. workers and prevent the exploitation of foreign workers by requiring that an employer file a Labor Condition Application (LCA) with the US Department of Labor (DOL). The employer must attest to the following on the LCA:
- it will pay the non-immigrant worker at least the local prevailing wage or the employer’s actual wage, whichever is higher, and will pay the employee for any non-productive time;
- it will offer the non-immigrant worker benefits on the same basis as U.S. workers;
- it will provide working conditions for non-immigrants which will not adversely affect the working conditions of others similarly employed;
- there is no strike, work stoppage, or lock out in the occupational classification at the place of employment;
- it will provide notice to the union (if any) or other workers of its intent to hire a non-immigrant worker;
- it will provide a copy of the LCA to the non-immigrant worker prior to the beginning of his/her employment.
Other Employment Restrictions:
- H-1B status permits an individual to remain in that visa classification for a maximum of six years.
- The H-1B employee is only eligible to work for the employer which applied for and received approval of the H-1B petition.
- The H-1B employee is permitted to hold only the specific position outlined in the H-1B petition. If the H-1B employee changes positions, the employer must file a new H-1B petition.
Termination and/or Change of Employer:
- If the H-1B employee chooses to terminate the employment relationship with the sponsoring employer, his/her H-1B status is automatically terminated.
- If the H-1B employee accepts a position with another employer, the new employer must file a new H-1B petition and is not legally able to employ the foreign national until it has received notice of receipt of the application from the immigration service.
- If the immigration service denies the application for new employment, the new employer
is legally bound to terminate the H-1B employment upon receipt of the denial.
6) The Prevailing Wage and the Labor Condition Application
At the heart of the visa H-1B petition is the US Department of Labor with its prevailing wage and the Labor Condition Application. Before it can submit an H-1B petition to the immigration service, the employer is required to attest to a number of conditions. Failure to follow these procedures, or to abide by the regulations of the Labor Condition Application, subjects the employer to serious consequences, which include:
- fines of $1,000 to $5,000 for each offense;
- payment of back wages;
- prohibition from hiring foreign workers for a year or more.
The employer is also required to maintain substantial documentation that it is in compliance with these regulations and to hold that documentation in a Public Access file which may be audited by the Department of Labor at any time.
“To knowingly and willingly furnish any false information in the preparation of a Labor Condition Application, and to aid, abet, or counsel another to do so, is a federal offense punishable by fine or imprisonment of up to five years.”
Therefore, the OIE takes responsibility for the preparation, signing, and submission of the LCA, and to ensure that all hiring departments are aware of and prepared to comply with all of the federal regulations which govern the H-1B visa.
Foreign Nationals in J-1 Exchange Visitor Non-Immigrant Status:
Some foreign nationals currently in the U.S. might be in J-1 Exchange Visitor status. Others may have held this type of visa in the past. Many of these individuals may be subject to the Two-Year Home Physical Presence Requirement. The two-year requirement is mandated by the Department of State if the foreign national’s exchange program was:
- financed by the U.S. Government and/or the home government;
- if his/her skills are listed as in short supply by their home country; or
- who came to the U.S. for graduate medical education or training.
In these cases, the foreign national is required to return to his/her home country for a period of two years before s/he can hold H-1B status or become a permanent resident of the US. An individual subject to requirement will have to obtain a waiver of that requirement from the U.S. government before s/he is eligible for H-1B status.
Unfortunately, grounds for applying for a waiver are limited and, even when successful, can take six months to a year to obtain. If your department’s prospective foreign worker indicates that s/he is in J-1 status, and/or may be subject to this requirement, contact the Director of the Office of International Education immediately to discuss this situation.
7) Time Frame for Approval
In most cases, the foreign employee will not be able to begin employment at Southern until the H-1B petition has been approved by immigration service.
In most cases where the new employee is already in possession of valid H-1B status, s/he cannot begin employment until Southern has filed the H-1B petition and received a notice from immigration service that it has received our petition.
It is currently taking the immigration service up to six months to adjudicate an H-1B petition. The OIE preparation time ranges between 30 and 45 days and includes obtaining a prevailing wage, preparing and filing the LCA, and preparation of the H-1B petition. Therefore, when you offer a position to a foreign national, you must allow sufficient time between your offer and the start date of the employment. Although the OIE will do its best to accommodate your needs, it is not within our power to circumvent the system or shortcut federal regulations. Therefore, it is imperative that you plan accordingly and consider this information carefully. In situations where it is not possible to provide a signed offer letter and accompanying documents to the OIE within the recommended time frame (180 days prior to the employment start date), it may be necessary to submit payment to the USCIS for expedited processing. This is costly (approximately $1300.00 in addition to the required application fee and fraud detection fee—the latter for initial applications only), but guarantees that the USCIS will review the petition within 21 days.
Once the OIE has received your completed application, barring complications, preparation time for all steps of the H-1B petition is 30 to 45 days. Approval of the petition by the immigration service takes up to six months at the present time.
If the foreign employee is outside of the U.S., an application for an H-1B visa must be made at the U.S. embassy or Consulate following the immigration service’s approval of the petition. From April to August, this may add a month or two to the process.
H-1B status represents the only viable choice for the employment of foreign nationals in tenure-track faculty positions. It is often the best alternative for long-term professional and administrative positions, although the procedures and requirements outlined above may appear complicated and cumbersome. Please be assured, however, that we will assist you throughout the process. Every effort will be made to ensure that the hiring of foreign national for staff and faculty positions is done in the most effective, timely, and professional manner. Our goal is to ease the burden on individual departments while ensuring that SCSU is in full compliance with all government regulations and procedures.
In order to avoid delays and complications, it is recommended that you contact the Director of the Office of International Education prior to finalizing the job offer. This will enable us to review the employee’s immigration history and make an initial assessment of the complexities of the situation.
Please fill out the data collection form, sign the Labor Condition Attestation form, and return them with all requested information to:
Dr. Erin Heidkamp, Director
Office of International Education