Obtaining H-1B Immigration Status for Employment at LSU

 

ExpandEligibility for H-1B Status

The H-1B is a non-immigrant visa that is widely used for the temporary employment of foreign nationals in specialty occupations. A specialty occupation is defined by the Immigration and Nationality Act as an occupation 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. Universities, colleges and nonprofit research institutions are exempt from the H-1B visa numerical cap.

J-1 Visa holders subject to the two year home residency requirement are not eligible for H-1B visa status unless they return home for two years or obtain a waiver of the requirement from the U.S. State Department, Waiver Review Board. A J-1 scholar will be subject to the requirement if the scholar:

  1. Received funding for his J-1 program directly from his home government or US government or certain international agencies.
  2. Possesses a skill needed in his or her home country as indicated on the "Skills List”.
  3. Is in the U.S. to receive medical education or training.

ExpandPeriod of Authorized Stay

An H-1B petition for an initial H-1B or extension can be authorized for up to a maximum of three years. Extensions of stay may be authorized for subsequent periods of employment, not exceeding a total of 6 years. An individual who has been in the United States in an H status for six years is ineligible to hold further H-1B status until he has spent one year outside the United States. Extensions beyond the six-year limit are only available under certain restricted circumstances. For example, if the H-1B six year time limit is reached and a year or more has passed since a Labor Certification, or an immigration petition for alien worker or an adjustment of status application was filed, an H-1B visa may be extended in one year increments, until the decision is made on the green card petition.

If the foreign employee is in another visa status (e.g., F-1/ OPT, J-1, TN, etc) while the H-1B visa petition is being processed, the employee may continue to work until the current work authorization expires. However, if the current work authorization expires, the employment must be terminated until the H-1B is approved.

An employee, for whom the employer has filed a timely H-1B extension application, may continue employment with the same employer for up to 240 days beyond the expiration of the prior period of authorized stay. The application must be received by the United States Citizenship and Immigration Service (US CIS) before the expiration of the current period of H-1B status.

An individual who must travel to the United States to take up a position as an H-1B worker may enter the United States no earlier than ten days before the H-1B approval period. An individual who must leave the United States must leave on or prior to the expiration date on their I-94. There is no grace period for H-1B holders after their authorized stay ends. However, if an H-1B holder was admitted for the validity period of the approved H petition plus 10 days after the end of the validity period, then the H-1B holder may stay for up to ten days after the expiration of the H-1B status. Employment is not permitted during either ten-day period.

ExpandTerms of H-1B Employment

An H-1B worker may work only for the employer who filed the H-1B petition. However, H-1B status is “portable”. If an H-1B worker gets a new job offer, the H-1B status holder may begin work with the new employer soon after the new employer properly files a new H-1B petition with the United States Citizenship and Immigration service (USCIS). The employer and the employee do not have to wait for the new H-1B petition to be approved.

An H-1B employee can work only in the position that was described in the H-1B petition. Before an H-1B employee’s terms of employment are changed, including a change in the job title, promotion, or transfer of department, the International Services Office must be informed, in order to ensure compliance with H-1B regulations. The International Services Office must also be notified when employment is terminated early.

The employer is liable for the cost of return transportation to the alien’s home country or last permanent residence abroad if the employer terminates the alien’s position before the end of the period specified on the H-1B visa. It is therefore important that hiring departments apply for H- 1B status for only the time period for which funding is guaranteed.

An H-1B worker may study or attend classes. However, studying must be incidental to the alien’s employment, and not the alien’s primary purpose in remaining in the United States.

ExpandThe H-1B Process

The documentation required for all H-1B processes (new, concurrent, extension, transfer, or amendment), is virtually the same. Therefore the “H-1B Request Form” and the “H-1B Checklist” is applicable for all H-1B processes.

It is extremely important that hiring departments allow sufficient time between the job offer to a foreign national and the start date of the employment so as to allow for the completion of the H- 1B visa process. Except under the “portability” rule explained above, employment is not permitted until the US CIS approves the petition to hire the foreign national. US CIS takes three to six months to process an H-1B petition.

If the foreign national is outside of the United States, he will have to go to the U.S. Consulate abroad to obtain an H-1B visa in his passport in order to enter the United States in H-1B status. This step may increase the H-1B processing time by days or weeks.

ExpandDepartment of Labor Requirements

Before the H-1B petition is submitted to the US CIS, a Labor Condition Application (LCA) is submitted to the United States Department of Labor (DOL) for certification. DOL takes an estimated 7 work days to process the LCA.

On the LCA, the employer must attest to the following:

  1. That the H-1B employee will be paid the prevailing wage for the occupation in the area of employment, or the actual wage at the place of employment, whichever is higher.
  2. That the H-1B employee will be paid for non-productive time, and will be offered benefits on the same basis as U.S. Workers
  3. That the working conditions of other employees will not be adversely affected by the employment of the H-1B worker.
  4. That there is not a strike, lockout or work stoppage in the course of a labor dispute in the occupation in which the H-1B non immigrant will be employed at the place of employment.
  5. That the employer is posting a notice of the filing of the LCA, and the notice will remain posted for 10 days at the place where the H-1B employee will work.

The employer is required to develop and maintain documentation supporting the above labor condition statements.

ExpandPremium Process

For an additional fee of $1,225 US CIS guarantees to process an H-1B application within 15 calendar days of the receipt of the petition. If the petition is not processed in 15 days, the premium processing fee will be refunded. According to LSU institutional policy, H-1B filing and expedite processing fees are the responsibility of the hiring department. The employee may pay the premium processing fee if the need to premium process is personal rather than employment related eg if the employee needs the H-1B expedited so that they can travel abroad on a personal trip.

ExpandDependents

Dependent spouses and children under 21 of H-1B foreign employees are classified as H-4. When an H-1B petition is filed on behalf of a foreign worker who is already in the United States, dependents who want to change to H-4 or to extend their H-4 status must file Form I-539. If the dependents are outside the U.S., form 1-539 is not filed. The dependents apply for H-4 status at a U.S. consulate abroad after the H-1B principle has been approved. Employment is not permitted in H-4 status. However, an H-4 visa holder may attend school full or part time.