H-1B Specialty Workers

H-1B Specialty Workers



General Information

Southeastern Louisiana University commonly uses the H-1B temporary professional worker category for tenure-track faculty members and research associates, as well as certain staff positions such as programmer/analysts and research specialists.

 

Current immigration law makes the H-1B category available to any person in a “specialty occupation,” that is, a position “which requires theoretical and practical application of a body of highly specialized knowledge and attainment of a Bachelor or higher degree or its equivalent in the specialty occupation as a minimum requirement.”

 

The H-1B employee must have met the minimum qualifications for the position, including experience, degree, any license or certificate, and any special requirements, at the time of filing the H1-B petition.

 

H-1B sponsorship is employer-specific.  The alien my not change jobs unless a new petition is filed by a new employer.  Likewise, any substantial/material change in the terms and conditions of employment (such as a relocation to a new worksite) generally will require that an amended H-1B petition be filed by the employer.

 

H-1B employment may be full-time or part-time, and may be sponsored for periods as short as need be or for as long as three years.  Presently workers may obtain H-1B status for an intitial period of up to three years, with one extension of status for an addtional three year period, for a total of six years.  Extensions beyond the normal six years may be otbained where the alien has filed for permanent residence, before the beginning of the sixth year of H status, and where the application for permanent residence has not been withdrawn, revoked or denied.

 

The timeline for employing non-resident aliens on H-1B is determined by the current backlog at USCIS. For the regular process it takes roughly three to four months of lead time. For expedited processing ($1225 extra charge) it takes three to four weeks of lead time. Departments are encouraged to begin the process with the ISO at least five to six months in advance of the anticipated start date of the H-1B employment.

 

Processing

Departments are encouraged to begin the process with the ISO at least five to six months in advance of the anticipated start date of the H-1B employment. After the position has been advertised and a candidate is chosen, should they be an individual from outside the U.S., the department must contact the International Services Office to start the process of assisting the individual with obtaining H-1B status.

 

Overview of the Process:

Departments who are hiring a non-resident alien should be prepared to offer a salary that meets both the prevailing wage and the actual wage requirements.  These terms are discussed in more detail in the H-1B Guidance for Employers which you may link to below.  The employer must have a real need for someone with the alien's qualifications.  Southeastern must file a Labor Condition Application with the Department of Labor, and on that form must make certain attestations regarding the H-1B employment.  The Labor Condition Application (LCA) is discussed in more detail in the H-1B Guidance for Employers.  Southeastern must also sign a statement agreeing to pay the cost of return transportation for the alien to return to his or her home country if he or she is dismissed by the Southeastern prior to the expiration of the term of their H-1B status.  Once the LCA is approved by the Department of Labor, the H-1B petition is filed with USCIS.  Depending upon processing times, and if expedited processing is requested, the alien will receive an adjudication for their case anywhere from  a few weeks to a month or two.

 

Further information and details on departmental responsibility and the application process can be found on the H-1B Guidance for Departments printable handout.

 

Individuals that have been recently hired to work at Southeastern and will also need H-1B status should also print and fill out the H-1B Employee Questionnaire and Document ChecklistReturn this form along with the documents mentioned on the checklist to the International Services Office in North Campus Main Building Room 139. 

 

Fees Required:

$325 Filing Fee -  (for I-129 H-1B Petition) Paid by hiring department

 

$500 Fraud Fee - paid by hiring department

 

$1225 Optional Premium Processing Fee - paid by department or employee

 

Attorney Fees - the International Services Office works with a contracted immigration attorney, Ware/Gasparian, to prepare and file H-1B petitions. All fees associated with this are paid by the ISO.


Length of Stay

An H-1B petition may be approved for an initial maximum period of three years. Extensions of up to an additional three years may be obtained. Under normal circumstances, the maximum stay permitted in H-1B status is six years.

 

If you are a current employee on the H-1B visa and you are eligible to extend your status, you will need to contact the ISO.

 

If a timely extension is filed (i.e. before the expiration of the current status), regulations allow individuals in H-1 status to continue to work for the same employer for up to 240 days while the extension petition is pending with USCIS.

 

It is ultimately the responsibility of the employee and department to be aware of the expiration date and to file an extension in a timely manner. Note that an employee must be taken off payroll if their current H-1B expires and the extension has not been submitted to USCIS.

 

H-4 Dependents

The spouse and unmarried children under 21 years of age of H-1B employees may apply for or extend H-4 status. H-4 dependents are not authorized to work in the U.S. under any circumstances. A child may not continue to hold H-4 status upon reaching his or her 21 birthday.

 

Travel

H-1B employees should always consult the ISO before traveling outside of the U.S. A letter verifying employment for travel purposes can be issued to the employer by contacting the ISO at 985-549-2360 or international@selu.edu.

 

Furthermore, employees requesting a change of status to H-1B (and H-4) within the U.S. should not leave the U.S. while the petition is pending at USCIS. USCIS considers leaving the U.S. while the petition is pending to be an abandonment of the petition.

 

Employment Restrictions

H-1B employment is specific to the employer for the individual employee for the particular position, department, location, number of hours worked, and duties. The department must contact the ISO as soon as possible PRIOR to any changes in their terms and conditions of employment.

 

H-1B employment authorized for Southeastern does not automatically allow employment with another department at Southeastern, another location, or different employer. Consult the ISO prior to changing the individual's employment (even within Southeastern), such as change in title, degree required for position, number of hours worked, department, location, or position duties. In most cases, an amended petition will have to be filed with USCIS.

 

NOTE: Failure to consult the ISO may put Southeastern and the individual employee at risk for sanctions and penalties by the Department of Homeland Security and the Department of Labor.

 

H-1B employees are NOT allowed to accept honoraria or payment from outside sources.

 

The H-1B worker must be paid the required wage under the Immigration Act of 1990. The H-1B required wage for an H-1B employee must be the higher of the two wages: either the "actual wage," the wage paid to similarly employed workers at Southeastern, or the "prevailing wage," paid to similarly employed workers in the metropolitan area as determined by the Department of Labor.

 

Employment of the H-1B employee may not adversely affect the working conditions of workers similarly employed in the department; nor is there at present a strike, lockout, or work stoppage in the department affecting such workers.

 

Southeastern is obligated by law to pay for an H-1B's return fare to his or her home country if for any reason Southeastern terminates his or her employment prior to the expiration of the H-1B employment authorization. The department must bear the cost of return fare in such a case.

 

The department must consult the ISO immediately if a decision is made to terminate employment prior to the expiration of the H-1B approval. The ISO will then notify USCIS and the Department of Labor that the employee has been terminated in order to release the department of salary/payment obligations. If an employee resigns, the department must also notify the ISO immediately. Consequences of failure to comply with H-1B Labor Condition Application requirements are severe, such as paying back wages for the duration of the H-1B employment.



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