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What is the H-1B status and how is it used at CofC?
The H-1B Temporary Worker status is a nonimmigrant immigration classification and is used to hire a foreign national professional for a temporary period of time for CofC faculty and academic staff positions. The H-1B status is employer specific. There must be an employer/employee relationship with the employer filing for H-1B status on behalf of the employee.
For how long can one have H-1B status?
H-1B status is initially granted for a maximum period of three years and can be extended to a total of six years (regardless of the number of employers).
Who files the H-1B application on behalf of CofC?
H-1B requests are normally processed through CIE.
Is the H-1B status valid for any employment at CofC?
No. The H-1B is valid ONLY for the position stated on the H-1B petition. The person holding H-1B status cannot accept any other employment in or out of the College.
Can a person who holds H-1B status change employers?
If an individual holds H-1B status and wants to change employers, the new employer must file a new H-1B petition. However, this must be done within the total six-year limit. The individual may begin working for the new employer, under a new “portability” regulation (AC21), as soon as the new employer has filed their petition, and received immigration’s official notice of receipt.
Can a person in H-1B status give the occasional lecture at an institution other than his or her place of employment?
Persons in H-1B status may give seminars and lectures at other institutions, if the activity is incidental to his or her employment at CofC. However, no honorarium, wage, salary or material gain may be derived from these activities. Reimbursement for transportation and reasonable living expenses is permissible.
What happens if there are changes in the terms of employment after the initial filing and approval?
If there are changes in the terms of employment (including promotions, changes in duties, or change of departments), you must first consult with CIE to determine whether an amended or new petition must be filed. If an amended petition is required, it will be necessary to initiate a new H-1B application.
Can a person have more than one H-1B petition at one time?
Yes. An individual may have multiple H-1B petitions at any one time. However, each employer must petition for the H-1B status.
What is involved in filing an H-1B application?
There are two steps involved in acquiring H-1B status. The first involves the Department of Labor (DOL) and requires an attestation from CofC that the “prevailing wage” for the particular position is being paid. Upon receipt of an approved Labor Condition Application, the actual H-1B application is submitted to the Immigration and Naturalization Service (USCIS). This application includes documentation about the nature of the position and the individual’s qualifications. If approved, the individual must obtain the H-1B visa overseas or have an USCIS approved change of status to H-1B.
What happens if my employment terminates?
The H-1B status is an employment-based status. As such, this status immediately ends upon termination of employment. Although the Form I-797 (USCIS approval notice) may indicate a date well into the future, it will become invalid upon termination. If you are moving to another employer, the new employer must file (and Immigration must receive) the new petition BEFORE the date of termination.
Can the USCIS process be expedited?
USCIS now offers expedited processing in the case of certain petitions. The USCIS Premium Processing Unit guarantees review of cases submitted, within 15 calendar days of the receipt of the application. The request for premium processing can take place at the time the H-1B application is filed, or, during the pending petition process, once the official receipt notice arrives. Either the hiring department or the applicant may pat the fee for this service, which is $1,000. This fee is “in addition to” the standard processing fee of $185. If you are interested in pursuing this option, please discuss with the adviser overseeing the H-1B filing.
Application for H-1B Visa
To apply for an H-1B visa, you must first contact the CIE Office to determine whether the candidate meets the eligibility and CofC sponsorship requirements for H-1B status. Please call CIE at 843.953-7822 to schedule an appointment.
Students and their Employers (Basic Information About H-1B Status for CofC Students and their Employers)
Part I: Questions commonly asked by students (and their employers)
What is H-1B Status?
H-1B status is an immigration status which is granted by the U.S. Department of Homeland Security (DHS – formerly INS) to an individual for temporary work in a professional level job in a “specialty occupation” with a specific employer who has obtained DHS approval of a petition for the specific job.
Who is eligible for H-1B status?
To be eligible for H-1B status, you must have an offer of a “professional level” or “specialty job” and normally have a minimum of a Bachelor’s degree or equivalent (or higher if job requires).
Note: persons who hold, or have held, J-1 or J-2 status are subject to the two-year home country residency requirement are not eligible for H-1N status.
What is a professional level job?
A professional level job is a position which normally requires a minimum of a Bachelor’s (four-year) degree. The degree must be a normal requirement for similar jobs with other employers.
Does the job need to be full-time?
No. You may obtain H-1B status for a part-time job, as long as you and the job meet the other criteria. There is not minimum number of hours per week for a job to qualify for H-1B approval. However, DHS workers must keep a written record of actual hours worked. The wage of a part-time employee must be calculated on a hourly basis.
What salary requirements are there for H-1B employment?
An H-1B employee must be paid at least the “actual wage” and at least 95% of the “prevailing wage”. The “actual wage” is the wage paid to other, similarly employed, employees with the same employer. The H-1B employee must also be eligible for the same benefits as a U.S. employee. The “prevailing wage” is the average wage paid to similarly employed persons by all employers in the same geographic area. More details about these salary requirements can be found in the regulations cited later in this information.
Does the employer need to advertise the job?
Not necessarily. No “Labor Certification” is required for an H-1B petition, and H-1B laws do not require that the job be advertised.
After I get H-1B status, may I accept any job?
No! The “petition” for H-1B status is filed by your prospective employer. The work permission (H-1B status) is then granted only for that specific job with that specific employer. If you wish to change hobs, your employer must file an entirely new H-1B petition. [If you were in legal H-1B status when DHS received the petition from the new employer, then you may normally begin working for the new employer as soon as they have a receipt from DHS, even if the petition has not been approved. There are some exceptions to this.] In most cases, having one H-1B petition approved will not make it any easier to get a second approval.
Is H-1B status required before I can apply for a Green Card? Will it make it easier to get a Green Card?
No! H-1B status is not a “stepping stone” to a Green Card and will probably not make it any easier to get Permanent Resident status. However, if you qualify for Permanent Resident status through your job, the application process can sometimes take 2-4 years, or even more. H-1B status will give you permission to remain in the U.S. and work in that job while you are waiting for approval of your Permanent Resident application.
If I am applying for Permanent Resident status, will it cause problems with my H-1B application?
No, probably not. In order to qualify for most non-immigrant visas or immigration statuses, such as F-1, J-1 etc., you must prove that you do not intend to be a Permanent Resident of the U.S. However, there is an official “recognition of dual intent” for persons applying for H-1B status or visa. Therefore, you may not be denied H-1B status or an H-1B visa simply because you are working on a Permanent Resident application. For this reason, it is often a good idea to change to H-1B status before beginning a Permanent Resident application.
If I get H-1B status, how long may I remain in the U.S.?
Your employer will tell DHS how long they intend to employ you, or how long they are requesting the H-1B status. DHS will normally grant H-1B status for this period of time, but no longer than three years at a time and no longer than six years total. [In some cases, applicants for Permanent Residence may obtain an H-1B extension beyond six years.] You will receive an I-94 showing the dates of petition approval. (Sometimes a grace period of 10 days is added.) You must leave the U.S. (or apply for a change of status) on or before the expiration date of the I-94.
If my job ends earlier than expected or if I am not working, may I still remain in the U.S.?
No! If your job ends before the end of your H-1B petition approval, your employer must report this to DHS. You must then depart from the U.S. immediately (or apply for a change of status). DHS has stated that they do not allow any “grace period” after the termination of the job. Note: if your employer terminates your job sooner than the ending date given to DHS, the employer must pay the expenses of your return travel to your home country. U.S. law normally requires an employer to pay an H-1B employee, until the position is officially terminated, even if he/she is not working. [Thus, “leave without pay” is not normally permitted.]
What if my employer wants to give me a promotion?
If there are any “substantial changes” in your job (such as a new job title, significant change in job duties, new location, etc.), then your employer may need to file a new H-1B petition before you begin your new job.
How do I apply for H-1B status?
It is the responsibility of the employer to complete all required paperwork and file the petition for the prospective employee. As the employee, you will not actually complete or sign an immigration form yourself. Note: in many cases, the employer must pay for the application fee for the H-1B petition, and you may NOT reimburse your employer for this fee.
There are technically two parts to the H-1B application: 1) the employer’s petition and 2) an application for the employee to obtain H-1B status. Both of these must be approved before you may work as an H-1B employee. If you are currently in the U.S. in legal non-immigrant status, then the employer may request that your status be changed to H-1B without leaving the U.S. This is done with the same form used for the employer’s petition. If you are outside the U.S. or will be leaving before obtaining H-1B status, then you must apply for an H-1B visa outside the U.S. and obtain H-1B status upon entry to the U.S.
Remember: if you change your immigration status within the U.S. you have not obtained a new visa. If you travel outside the U.S. and wish to re-enter with H-1B status, you must apply for an H-1B visa at a U.S. Consulate overseas. (If you travel to Canada or Mexico, you usually do not require a new visa for re-entry to the U.S. We suggest you discuss this with an advisor or an attorney).
Note: if your employer requests a change of status to H-1B (or an extension of H-1B status) for you, and you leave the U.S. before the application is approved, the change of status becomes invalid. Therefore, you should discuss any travel plans with an advisor or attorney.
How do I apply for an H-1B visa?
Remember: DHS must approve the employer’s petition before you apply for an H-1B visa at a U.S. Consulate.
To apply for an H-1B visa, you should submit the following materials to the U.S. Consulate:
- Copy of DHS approval of H-1B petition (Form I-797) [Many consulates require the original I-797.]
- Copy of employer’s H-1B petition
- Copy of certified Labor Condition Application
- Copy of highest diploma
- Recent letter from employer stating dates you have been employed (if any) and their intention to employ you upon return to the U.S.
In addition to the above materials, you must submit the materials required for all non-immigrant visas. Some consulates also require additional materials for an H-1B application. There is also a fee for the H-1B visa. Contact the specific consulate for their requirements. We also suggest that you take all previous INS/DHS documents with you when you apply for a visa. [Applicants from certain countries and in certain fields may experience a delay of several months in getting a visa, if a security clearance is required by the U.S. Department of State.]
Note: if you have ever stayed in the U.S. longer than the time authorized by INS/DHS, you may be subject to “222(g)” penalties. If this provision of immigration law applies to you, you will have to get your visa in your country of citizenship or permanent residency. For this reason, if you are not applying in your home country, we suggest that you be prepared to prove that you have always maintained legal status. If you think this penalty might apply to you, consult with an advisor or attorney.
How much does an H-1B petition cost?
The normal application fee is $185. This fee should normally be paid by the employer and not the employee. If the employer wants to request “premium processing” (or a faster processing of the application), they can pay an additional $1000. (These amounts do not include any fees required for a visa.)
How long does it take to get H-1B status?
It varies; the length of time depends, in part, on the location of the job. Once the employer has become familiar with the relevant laws and obtained the necessary forms, the entire H-1B petition process may take 4-8 months, if the applications are completed correctly, and if the application is filed with regular processing. If premium processing is requested, the process may take 1-2 months. However, the application can be delayed if the “H-1B cap” has been hit. Also not that this does not include time needed to obtain a visa at a U.S. Consulate.
What is the “H-1B cap” and how does it work?
U.S law allows only a certain number of new H-1B petitions to be approved by DHS each year (65,000 for FY 2011). This quota does not apply to persons who will be employed at academic institutions. It also does not apply to persons who already have H-1B status and are changing employers, unless they are moving from an academic employer to an non-academic one. When the allowable total of petitions have been approved for the fiscal year, DHS will not approve ant more H-1B petitions for that year. They may, however, approve the petition to be effective for the next fiscal year. (The fiscal year begins on October 1). In some cases, if you have F-1 or J-1 status which will expire before October 1 and are unable to change to H-1 status because of the “cap” has been reached, then you might be able to remain in the U.S. until October 1. We suggest you consult an attorney or advisor about current regulations.
What about my dependents?
If you have been granted H-1B status, your spouse and children (under 21) will normally be eligible for H-4 status. If you and your dependents are in the U.S. in legal status, and if your employer is requesting that your status be changed to H01B, your dependents may apply for a change to H-4 status. Your spouse or child should complete and sign Form I-539 and submit it with the employer’s petition, along with a fee of $195 (one fee for all dependents). (The I-539 should not be completed or signed by you.)
If your dependents are outside of the U.S., the employer does not need to include any information about them in the petition. After the petition has been approved, they may apply for H-4 visas at a U.S. Consulate. In addition to the items mentioned above for an H-1B application, they should present marriage certificate (for spouses) or birth certificate (for children).
Note that a person with H-4 status may normally not be employed in the U.S. However, your spouse may be eligible for H-1B status him/herself.
When may I begin working?
In order to be employed in the H-1B status, you must normally have both an approved petition for that particular job, and valid H-1B status. You may not begin working until both of these have been approved, unless you have another status which permits employment. For this reason, F-1 students often choose to apply for practical training authorization after graduation so they may begin working sooner. The application for practical training is simpler and usually faster than an H-1B application. If you will be working in a job longer than one year, your employer may then choose to file an H-1B petition.
Note: If you already hold H-1B status for another job, you may begin your new job as soon as you know that DHS has received a petition from your new employer.
What are the chances that an H-1B petition will be approved? What problems could we encounter?
If the position is clearly professional level one, and the employee has a degree in a related field, the chances are excellent that the petition will be approved eventually, although there are sometimes delays if DHS has some questions. Potential problems are:
- If the employee will not be making the prevailing wage, then the employer may not file the Labor Condition Application and thus may not file an H-1B petition.
- If DHS believes that the position is not a professional level one, the petition may be denied. (See above discussion of professional job)
- If the employer is very small or very new, DHS may question its ability to pay the stated wage.
- If your degree is not from the U.S., and the U.S. equivalence is not apparent, DHS may ask for a degree evaluation.
- If you are currently out of status, you may not change to H-1B status in the U.S. If the petition is approved, you will be required to obtain a new visa outside the U.S. If you are out of status, we urge you to consult an attorney.
May I still enroll at CofC after I change to H-1B status?
Yes. It you have H-1B status, the employment should be your “primary purpose” in being in the U.S. However, you may still register at CofC and/or complete a degree while you have H-1B status. Note, however, that you may not have an assistantship or other student job while you have H-1B status.
Is there any other kind of immigration status that I can use instead of H-1B?
H-1B is the status which is normally required for a non-immigrant to accept temporary employment, and it may be the only one available to your to use in order to work after your practical training expires.
Very briefly, some other statuses which permit work are listed below. Consult an immigration attorney for further details.
- F-1: As you probably know, F-1 students are usually able to have 12 months of practical training after (and sometime before) graduation.
- J-1: J-1 students are sometimes eligible for 18 months of academic training with permission from sponsor.
A J-1 scholar may be employed as a teacher or researcher at his/her host institution (usually a university or research laboratory. The J-1 scholar visa is intended to be used by Exchange visitors coming from their home countries and returning to their home countries. This is not often used for students who have recently graduated from a U.S. university.
- L-1: Used by employees of a multinational company who are temporarily transferred to the U.S. Not usually available to person already in the U.S.
- E- (1 or 2): Person employed by international (foreign) company under trade treaty.
- O-1: Used by persons of extraordinary ability; normally would not apply to a recent university graduate; may be used in outstanding athlete.
- P- (1,2, or 3): Used by performing artists and athletes.
- TN: (NAFTA Treaty) to be used by professional employees who are citizens of Canada or Mexico. Similar to H-1B, but available only to persons in certain professions. There is no requirement for the employer to document the prevailing wage, and the application procedure is much faster than an H-1B.
Part II: General Guidelines for Filing an H-1 Petition
Information for Prospective Employers
IMPORTANT: This information is provided as general background for the benefit of the College of Charleston, international students and their prospective employers. It is NOT intended to be used as the sole source of instructions for the filing of an H-1B petition. Note that H-1B petitions/applications must be filed by the employer and not by the employee. Because of the complexities of the laws, and the liabilities to employers, it is essential that the employer become familiar with the laws related to H-1B petition before making any application. We provide this information to assist the employer in making an initial decision whether to file an H-1B petition, and then in locating the relevant regulations and necessary forms. If the employer is not comfortable processing an H-1B application alone, we suggest the use of an immigration attorney.
Before filing any applications related to an H-1B petition, it is essential that he employer should read the relevant regulations carefully. There are two sets of related regulations; one from the U.S. Department of Labor (DOL) and one from the U.S. Department of Homeland Security (DHS).
DOL regulations can be found as follows:
Published in the Federal Register, December 2, 1991, pages 80110-89254
Also see 20CFR Parts 655 and 656 29CFR Part 507
More information available at U.S. Department of Labor website
DHS Regulations can be found as follows:
Published in the Federal Register, December 2, 1991, pages 6111-61137
Also see 8CFR Part 214.2(h)
Amendments to the regulations of 12/2/91 were published as follows:
Federal Register, August 15, 1994 (pp. 41818-41842) [mostly relate to O and P regulations for athletes and performing artists]
Federal Register, January 11, 1994 (pp. 1468-1470) and December 4, 1005 (pp. 62021-62022) [related mainly to physicians]
More information available at U.S. Citizen and Immigration Services website.
Basic Steps Involved in an H-1B petition to be Followed by Employers
- Read relevant regulations as listed on previous page (Do not file any H-1B applications before reading regulations!)
- Make preliminary determination of basic eligibility for H-1B status based on job title and employees qualifications.
- Calculate and document the “actual wage” for the position at the place of employment (company or institution) according to DOL regulations and guidelines.
- Obtain documentation of “Prevailing Wage” for area of employment, according to DOL regulations.
- Determine compliance with other statements on the Labor Condition Application (LCA) or Form ETA 9035E
- Notify bargaining representative.
- Prepare Public Access File as specified in DOL regulations.
- Complete and sign Dorm ETA 9035E (LCA); form is available at http://www.lca.doleta.gov/ and can be submitted electronically.
- When the certified copy of the LCA is received, complete and sign two copies of an H-1B petition (Form I-929 with Supplement H_ and submit with supporting documentation to the U.S. Citizenship and Immigration Service (CIS), a branch of the Department of Homeland Security. Petition may be filed for a maximum of there years.
To obtain Form I-129, go to http://www.uscis.gov/files/form/i-129.pdf . For a complete list of materials to be included with the petition, see the I-129 instructions. At a minimum, the petition should include the following:
- I-129 Form (with supplement H), with original signature of employer representative
- Documentation of employee’s diploma and other qualifications for position
- Copy of offer of employment or employment contract
- LCA (ETA 9035E) certified by DOL
- Check or money order for required fee ($185 or $1185 for premium processing)
- Letter describing employer and explaining nature of job
- Documentation that the employer is financially able to pay the stated salary
- If employee is in the U.S. and wished to change to H-1B status, include documentation of current immigration status and work authorization, if any
If employee’s spouse or children are in the U.S. and wish to change to H-4 status, they should complete and sign Form I-539 and submit it with documentation of immigration status and required fee. This should normally be mailed with the petition. The I-539 form is available at the USCIS website. Attach check or money order for $195 (for any number of dependents).
DHS may request documentation or information before making a final decision. Common requests are for more detailed explanation of educational credentials, a more detailed job description, or more information about the employer. If DHS does not request additional information, the decision should be received in about 3-6 months.
Employers should give a copy of certified LCA to the employee (required law). It is also suggested that he/she be given a copy of the petition. When H-1B petition has been approved, DHS will send a Form I-797 to the employer. This should be kept by the employer but may be loaned to the employee for the purpose of applying for a visa. If DHS has also approved a change of status, the I-797 will include a new I-94 showing H-1B status. Employee should receive original I-94 and photocopy I-797.
If employee is not in the U.S., he/she should apply for a visa at a U.S. Consulate, using the I-797 approval form DHS. See travel.state.gov for visa application information. When the employee has received a visa, he/she may travel the U.S. and be admitted in H-1B status. When the petition has been approved and the employee has been granted H-1B status, the employee may begin working.
If the employee already has valid work authorization, he/she may begin working before the petition is filed. However, if work authorization expires before H-1B petition is approved, employee must stop working.
To apply for extension of H-1B petition, repeat the above procedure. Extensions may be requested up to a maximum of six years. If employee has applied for Permanent Resident status, it is sometimes possible to obtain H-1B extension beyond six years.