Hiring H-1B Specialty Occupation Workers at A&M-SA
An initial meeting with the Office of International Affairs is optional. The OIA Director is ready to assist with explaining the H-1B process. If you would like to schedule a time to meet, please contact (210) 784-1308 or email me at firstname.lastname@example.org. At the initial H-1B meeting, you will be provided with guidance based on both federal/intuitional policies. Please let us know if you have any questions or concerns.
H-1B status is suitable for foreign nationals who will perform services temporarily in the U.S. in a specialty occupation. A specialty occupation is defined by the Immigration and Nationality Act as requiring: 1.) Theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation; and 2.) attainment of a bachelor's or higher degree in the specific occupational specialty. INA §214(i)(1).
Since the H-1B visa status is employer-employee specific, the H-1B holder may only work for the employer that petitioned USCIS for his or her H-1B visa status.
At A&M-SA, the process of sponsoring a foreign national for H-1B status is initiated by the sponsoring department. This H-1B Petition Checklist is provided to assist in the H-1B process.
The department must take the following action:
1. Send an email to the OIA indicating your intent to sponsor a foreign national for an H-1B visa. The initial email must include the foreign national's C.V. and contact information such as their email address.
Upon receipt of the department's email, the OIA will respond with detailed instructions as follows:
- Getting Started
- Memorandum of Support -The department must obtain the appropriate administrative approval from the Provost to support an H-1B visa petition. The memo is forwarded to the OIA (along with the complete H-1b packet). The OIA will review the H-1b packet and if all documentation is in order will seek the Provost signature/approval at this time. An H-1B petition cannot be filed with the U.S. Citizenship and Immigration Services unless prior Provost written approval is obtained.
- A Memorandum of Support prepared by the Department Chair and or Dean to the Provost which requests institutional support for H-1B sponsorship and outlines relevant information on the international visitor. Sample Memorandum of Support to see the information the memorandum must contain.
- Identify the individual you want to support.
- State the position title, number of hours per week and the annual salary.
- Job description, period of appointment (not to exceed maximum period of three years); and, actual physical address where expected services will be performed; statement indicating the department will pay cost of return home in the event the international visitor is released from his/her duties prior to end of appointment.
- Include in the memo the following verbiage: “All H-1B non-immigrants will be paid at least the actual wage level paid to all other individuals with similar experience and qualifications for the specific employment in question or the prevailing wage for the occupation in the area of employment, whichever is higher.”
- Offer Letter – A copy of the signed original offer letter must be provided;
- Curriculum Vitae – A copy of the beneficiary’s most current C.V. that provides a summary of the beneficiary's educational training and work experience both in the U.S. and abroad
- Application Fees: Filing Fees (Employer responsible for these fees);
- $460 – Application fee (Fee applies to initial and/or H-1B extensions);
- $500 – Anti-fraud fee (Fee applies to initial H-1B petitions only);
- $1,410 – Premium Processing fee (Fee is optional and can be paid by the department or the beneficiary).
- The employer must pay each of these fees in the form of checks made payable to "Department of Homeland Security". The H-1B applicant must not pay either of these filing fees (except for the Premium Processing fee.)
- The OIA will review the department's H-1B packet. If the OIA can assess all documentation provided by the department meets support for H-1B sponsorship criteria, the OIA will approve the packet to move forward for the Provost' signature and/or administrative approval.
In order to avoid delays, the department must forward a “completed” H-1B packet to the Office of International Affairs.
Obtaining H-1B Classification
- Prevailing Wage Determination: A completed Department Request for a Prevailing Wage Determination form, along with the position description, will allow ISFS to obtain the most appropriate prevailing wage from the Department of Labor (DOL). Employers must pay the salary offered to the employee or the prevailing wage dictated by DOL, whichever is greater.
- Labor Condition Application: After obtaining a prevailing wage determination from DOL, ISFS will prepare Form ETA 9035, Labor Condition Application (LCA) and send a Notice of Filing a Labor Condition Application to the sponsoring department for posting in 2 conspicuous places for a period of 10 business days.
After the notice is posted, OIA will submit the LCA to DOL for certification. Information needed to complete the LCA includes: Job title, proposed rate of pay, proposed dates of employment (maximum time per H-1B application is 3 years), and physical location of employment. This information will be used to file the LCA and it must be included in the job offer letter.
When the LCA posting period is over and OIA has received a certified LCA from the DOL, the H-1B petition, along with the employee's supporting documentation, will be submitted to USCIS for adjudication. Once filed, USCIS will issue a receipt notice as evidence that the petition has been received and will be processed. OIA will forward to A&M-SA employees the receipt number which can be used to check the status of the case online.
The H-1B Approval Notice
Upon approval of the H-1B petition, USCIS issues Form I-797 Notice of Action. Those employees that are not yet in the U.S. will use the I-797 when applying for a visa at a U.S. consulate.
Typically, H-1B visa status may be held for a maximum of 6 years. Exceptions to this include the following instances:
If the foreign national has spent time abroad while in H-1B status, that time may be recoverable.
If 365 or more days have elapsed since a labor certification or I-140 benefiting the H-1B holder was filed, he or she may be eligible for a one-year extension of his or her H-1B status.
A foreign national may be eligible for a three-year extension of his or her H-1B status if the foreign national is a citizen of India or China, and has an approved I-140; but who cannot apply for adjustment of status because his/her priority date is not current due to the "per country" limits on immigrant visa availability.
Special Note on Beneficiaries with Previous J-1 Status
It is important to note non-immigrants who are currently in (or have been in) the United States on the "J" Exchange Visitor Visa may be subject to the two-year home residency requirement and ineligible for the H-1B visa status unless a waiver of the two-year home residence requirement has been granted or the individual has fulfilled this requirement. An international visitor that has held prior H-1B or L-1 status for six years may not be eligible for H-1B sponsorship beyond the six year maximum period allowed.
Individuals who hold valid H-1B status obtained through another employer may begin employment at A&M-SA as soon as a petition is filed with USCIS and a USCIS receipt notice is provided to the OIA. Under this circumstance, the prospective employee does not have to wait for the new H-1B petition to be approved prior to the commencement of employment. However, if the petition is denied, the employee's work authorization is immediately terminated.
Amendment of H-1B Employment
When there has been any material changes in the terms and conditions of employment or training or the alien's eligibility as specified in the original approved petition, the petitioner has to file an amended or new petition, with the appropriate filing fee, with the Service Center where the original petition was filed to reflect this change.
When filing an amended or new H-1B petition, it must be accompanied by a current or new Department of Labor determination. In the case of an H-1B petition, this requirement includes a new labor condition application. 8 CFR § 214.2(h)(2)(i)(E)