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H-1B Specialty Workers

 Texas State University most 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 baccalaureate 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 H-1B petition.

The hiring departments and the foreign nationals are not authorized to file their own H-1B petitions.

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  • Application & Process Information

    •  

      Preparation and filing of the H-1B nonimmigrant petition is a three-step process:

      Step 1

      The International Office must first obtain an “H-1B required wage” by comparing the prevailing wage determination from the Department of Labor (DOL) to the actual wage data provided by the hiring department.  An H-1B employer is required to pay the higher of the two wages. If Texas State’s wage offer is found to be inadequate, the amount must be increased, or the H-1B process for the position must be abandoned.  This process may take 30-60 days at DOL.  Please note that DOL may increase the processing time without advance notice.
       

      Step 2

      After receiving a satisfactory prevailing wage determination, the International Office files a Labor Condition Application (LCA) with DOL affirming that Penn will meet the prevailing wage and other legal requirements of the H-1B.  This process may take seven business days or more.

      NB: The hiring department will be asked by the International Office to immediately post a notice of LCA filing for 10 consecutive business days in a conspicuous place. The posting will not delay the H-1B processing.
       

      Step 3

      After receiving LCA certification, the International Office files the H-1B petition with US Citizenship and Immigration Services (USCIS), Department of Homeland Security (DHS).  The hiring department will be notified when the International Office receives the approval notice from USCIS.

      • To allow for sufficient government processing time, hiring departments should submit H-1B request materials to the International Office for a prospective H-1B employee 6-7 months in advance but no later than 90 days prior to the anticipated start of H-1B employment.
         
      • Usually within 6-12 weeks of receiving the complete request packet, including checks and all supporting documents, the International Office will submit the H-1B petition to USCIS.
         
      • If a complete H-1B request packet is not submitted to the International Office in a timely fashion, the International Office cannot guarantee that the application will be processed and/or filed in a timely manner or at the requested time. Please note that the International Office processing times may vary depending on volume.
      • A department may request USCIS to process an H-1B petition under regular or premium processing. Under regular processing, USCIS usually takes 3-6 months to adjudicate the petition.
      • If a department chooses premium processing, USCIS will adjudicate the petition within 15 calendar days of receipt at USCIS.
        • This does not include the time needed by the International Office to review the H-1B request materials, to receive approval from the DOL, or the time it will take for delivery of the printed approval notice. Note that premium processing does not guarantee approval. USCIS could respond within 15 calendar days with a request for additional information, approval or denial.
    • New Answer

    • The federal filing fees required for H-1B are:

      H-1B Petition Filing Fee
      $325
      Premium Processing Fee (optional)
      $1,225
      Fraud Prevention and Detection Fee
      $500 (initial H-1B at Penn only)*
      Form I-539 Fee
      $290 (for H-4 dependents in the US, if needed)

      The hiring department is responsible for paying all filing fees with the exception of the fee for Form I-539.

      The employee may pay the Premium Processing fee only if expedited processing is requested for personal reasons unrelated to employment. In such cases, the H-1B request packet sent to the International Office must come with a letter signed by the employee giving the reason for expedited processing.  All such requests are subject to review and approval by the International Office.

      All fees should be paid by separate checks made payable to “Department of Homeland Security.” Questions regarding the process of requesting a university check should be directed to the Office of the Comptroller.

      * The antifraud fee is not required to extend H-1B employment at Texas State or change H-1B employment within Texas State.

    •  

      After completing the online form, the hiring department must review and submit the supporting documentation and items from the employee listed below as one complete package to the International Office. Please save a copy of materials and forms, including checks, submitted to the International Office for your records.

      Printable materials from the International Office website

      • H-1B Position Description
      • Actual Wage Worksheet and Declaration
      • Department Request Summary and Understanding of H-1B Employment
      • Export Control Attestation Form
      • For initial H-1B for post doc, a copy of the J-1 Postdoc Policy waiver/exception approval notice

      Checks payable to "U.S. Department of Homeland Security".  To avoid danger of checks expiring, checks should be valid for at least 75 days after submission to the International Office.

      • $325
      • $500 (The antifraud fee is not required to extend H-1B employment at Texas State or change H-1B employment within Texas State.)
      • $1225 (Optional, refer to the H-1B instructions)

       

    •  

      • The department should obtain the following items from the employee to submit to ISSS.

        • Current curriculum vitae of individual
        • Photocopy of individual's diploma (of degree required for position)---please reduce copy to fit on 8 1/2 x 11" paper
        • An official or attested translation if the diploma is not in English
        • A credential evaluation if the degree is not from a US institution---recommended (Note: USCIS may request this)
        • Any licenses, certificates, or other special documentation required for the position.
        • Additional documentation for Health Care Workers:
          • If the position is for a physician with clinical responsibilities who is a Foreign Medical Graduate, provide copies of Steps 1, 2 and 3 of the individual’s USMLE scores, ECFMG English language certification, and valid Pennsylvania medical license.
          • If the position is for a registered nurse, provide a copy of the individual’s valid Pennsylvania RN license and certificate from the International Commission on Healthcare Professions division of CGFNS (Visascreen), certifying that 212(a)(5)(C) INA/8 CFR 212.15(f) requirements have been met.

            *There may be other special requirements for other health care worker positions, such as language pathologist or physical therapist. Please consult ISSS in such cases.
        • Photocopy of passport page(s) showing photo, biographical data, issuance date, and expiration date
        • Photocopies of supporting immigration documents if individual is in the US (single-sided copies, please):
          • Valid I-94 card, front and back
          • Supplemental documents if currently holding one of the following nonimmigrant statuses:
            • F status: Copies of current and all previous I-20 forms, pages 1 and 3 (single-sided copies) and Employment Authorization Document (EAD) if authorized for F-1 Optional Practical Training
            • H status: Copies of current and all previous approval notices (form I-797). 2-3 most recent pay stubs if extension, amendment, or change of employer. Change of H-1B employer cases---if the H-1B employment has ended or will have ended before Penn's H-1B approval, consult ISSS immediately.
        • If you currently hold or have ever held J status: Copies of current and all previous DS-2019 (and IAP-66 forms (front and back), if applicable)---if the individual has ever been subject to 212(e) "two-year home residency requirement," submit evidence of a waiver or of having fulfilled the requirement. If J-2, include copies of current and all previous EADs.

        If the employee is in the US and has a spouse or unmarried children under 21 in the US for whom dependent H-4 status is required, the department should obtain the following and submit with the H-1B request packet:

        • Form I-539, signed by the main H-4 dependent --- available at http://www.uscis.gov/forms
        • Government filing fee for Form I-539 -- http://www.uscis.gov/forms  (A separate check payable to “Department of Homeland Security” must be written for the I-539 application fee, not to be combined with the H-1B I-129 filing fee)
        • Copy of valid I-94 card (front and back)
        • Copy of initial entry stamp in H-4 status from passport or I-94 card, if applicable
        • Copy of passport page(s) showing photo, biographical data, issuance date, and expiration date
        • Copies of currently and previously issued documents for current status (i.e., I-797 notices for H, DS-2019(s) for J, or I-20 for F)
        • List on a separate sheet, a detailed chronological history of each H-4 dependent’s prior and current stay in the US. Provide the dates and specify each status (e.g., Hiroshi Au, 11/20/2004 – 03/13/2006 in J-2 status & 03/14/2006 – present in H-4 status).
        • For spouse, copy of marriage certificate (recommended)
        • For child(ren), copy of birth certificate (or other legal papers) confirming H-1B as parent (recommended)

        Special Instructions for Completing Form I-539

        • Part 1 of form I-539 “Information about you” is to be completed by the family member (spouse or child) who is currently in the United States and extending/changing to H-4 status. If there is more than one family member extending/changing to H-4 status, additional members should be listed in “Attachment -1.”
        • Part 3, Number 1—enter same date as H-1B request end date.
        • Incomplete, inaccurate, or unsigned applications or checks may result in rejection of application by USCIS—contact the International Office if you have any questions.
    • Before hiring a foreign national for any position, departments should first contact the International Office to assess the appropriate employment authorization.  In addition, due to U.S. government regulations regarding wage requirements, departments must work in close consultation with the International Office and Academic Affairs before finalizing salary and terms of contract with an international prospective that requires processing H-1B employment authorization.

      1. Consult with the International Office and Faculty Records to hire a prospective international employee with H-1B employment authorization
         
      2. Complete the prevailing wage worksheet that the International Office will e-mail you and return it to the International Office
         
      3. Meet the prevailing wage requirements
         
      4. Review, sign and certify appropriate documents as provided by the International Office

    • 1.        Submits wage documents to the Texas Workforce Commission

      2.        Submits the Labor Condition Application to the Department of Labor

      3.        Prepares and posts LCA notices

      4.        Prepares the petitioning letter, application forms I-129 and I-129W

      5.        Prepares memos for check issuance and picks up check from Accounting

      6.        Overnights the H-1B petition to the US Citizenship and Immigration Services (USCIS)

      7.        Notifies the "contact" person named on the worksheet when the petition is receipted and    
      approved by USCIS.

       

    • The USCIS filing fees for a new H-1B petition are $320 and $500.  If the department chooses to cover this filing cost they need to send a payment request (Form #AP-1), along with documents provided by the International Office, to Accounting requesting two checks payable to "Department of Homeland Security".

    • USCIS will adjudicate the petition within three to seven months.  A "receipt notice" will provide a file number, and the progress of the petition may be tracked online at the USCIS website.

    • Texas State staff may qualify for H-1B employment authorization if the position is a specialty occupation that requires a bachelor's degree or higher.

       

       

    • Since most employment-based immigrant petitions involve Texas State as the petitioner, the International Office has been designated as the office with authority in filing these petitions.  The International Office recognizes, however, that under unusual or extraordinary circumstances an outside attorney may be required to file an employment-based immigrant petition.  Unusual or extraordinary circumstances will typically mean either a complex case requiring an unusual amount of time to prepare or a case requiring expedited handling.  While it is always permissible for a foreign national to retain an attorney, that attorney cannot represent the University’s interests without the express written permission of the University Attorney, the International Office, and the department chair.  When an outside attorney is used, the International Office will review and sign the petition and Form G-28 on behalf of the University o insure compliance with all University sponsorship guidelines.  Texas State does NOT authorize outside attorneys to file petitions and applications on behalf of Texas State.  All fees for such a case are the responsibility of either the employing department or the beneficiary of the immigrant petition.

    •  

      Job Title

      Eligible for H1B

      Eligible for Permanent Residency

      Academic Titles:

      Professor

      X

      X

       

      Associate Professor

      X

      X

       

      Assistant Professor

      X

      X

       

      Instructor

      X

       

       

      Senior Lecturer

      X

       

       

      Lecturer

      X

       

      Research Titles:

      Research Scientist

      X

      X

       

      Senior Research Scientist

      X

      X

       

      Research Engineer

      X

      X

       

      Senior Research Engineer

      X

      X

       

      Research Associate

      X

      X

       

      Postdoctoral Fellow

      X

       

       

      Senior Research Fellow

      X

       

       

      Research Fellow

      X

       

      Librarian Titles:

      Professional Librarian

      X

      X

       

  • Conditions & Reminders

      • 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. This time limit is for all employment in H-1B status, regardless of employer.
      • Note: H-1B periods requested should not exceed periods of funding availability.
      • It may be possible to request an H-1B extension beyond the 6-year limit for any time spent outside the US.  If applicable, a list of dates and location of travel with documentation, such as copies of entry and exit stamps in passport (preferred), travel itineraries, or frequent flyer mile postings, should be provided.
         
      • It may also be possible to request an H-1B extension for up to one year beyond the 6-year limit if a Labor Certification Application or I-140 Immigrant Petition was filed on your behalf at least 365 days ago.  An extension for up to three years may be possible if the I-140 has been approved. A copy of the receipt or approval notice for any I-140 filed on the H-1B employee’s behalf and copies of any I-485 applications filed for him or her or any dependent family members should be provided.
      • Per federal rules, all H-1B and O-1 petitions must include attestations regarding deemed exports. 
      • Penn must certify whether the University needs a license from the Federal government in order to allow the prospective H-1B or O-1 employee to access certain controlled technology or technical data. 
      • The licensing requirement affects only a small percentage of Penn's international employees because most types of technology and technical data do not require a "deemed export" license or because one or more exemptions will apply.
      • For more information on export control, visit http://www.upenn.edu/researchservices/exportcontrols.html.
      • 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 ISSS as soon as possible prior to any anticipated changes in the terms and conditions of employment.
      • H-1B employment authorized for Penn does not automatically allow employment with another department at Penn, at another location, or for a different employer.  Consult ISSS prior to changing the individual’s employment (even within Penn), 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 ISSS may put Penn and the individual employee at risk for sanctions and penalties by DHS and DOL. 
      • H-1B employees are not allowed to accept honoraria or payment from outside sources.
      • The H-1B worker must be paid the “H-1B 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 Penn, or the “prevailing wage” paid to similarly employed workers in the metropolitan area as determined by DOL.
      • 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.
      • Penn is obligated by law to pay for this H-1B employee’s return fare to his or her home country if for any reason Penn 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 ISSS immediately if a decision is made to terminate employment prior to the expiration of H-1B approval. ISSS will then notify USCIS and DOL that the employment has been terminated in order to release the department of salary/payment obligations.  If an employee resigns, the department must also notify ISSS immediately.  Consequences of failure to comply with H-1B Labor Condition Application requirements are severe, such as paying back wages for the duration of H-1B employment.  The department must notify ISSS immediately if the employment will be terminated early for any reason.
      • Upon review of the H-1B request packet, ISSS will forward a “Notice of (LCA) Filing” to the department contact person for immediate posting within the department.  If there is a regular work location in another place, additional posting may be required.
      • To be in compliance with DOL regulations, all information provided to ISSS should be accurate and up to date.
      • Once the H-1B petition is approved, USCIS will send a Form I-797 to ISSS. ISSS will notify the department contact person (usually within 2-5 days of receipt) to arrange pick up of the H-1B approval package, containing the following:
        • Form I-797 Notice of Approval
        • Copy of the H-1B petition sent to USCIS
      • The department should read the I-797 Approval Notice carefully for accuracy and, after copying the I-797 notice for the records, send the documents to the H-1B employee to be kept in his/her possession.  The department should provide the entire I-797 notice to the employee and not detach the bottom portion.
      • For individuals extending, changing to, or continuing H-1B status within the US, the H-1B petition must be properly filed with USCIS prior to the end of the H-1B’s currently valid nonimmigrant status in the US.
      • Failure to maintain one’s valid nonimmigrant status may result in denial of the extension, change, or continuation of his or her nonimmigrant status in the US.

      Individuals currently outside the US must wait to receive the I-797 approval notice from their department for their H-1B employment confirming that USCIS has approved Penn’s H-1B petition for their employment, then obtain an H-1B visa stamp (citizens of Canada and Bermuda are not required to obtain H-1B visa stamps) from a US Embassy or Consulate.  Upon entry to the US for H-1B employment at Penn, the individual may begin work once the start date has been reached.

      Individuals currently working in another nonimmigrant status may only work under the terms and conditions of their current status.  Upon expiration of that authorization, an individual must be removed from payroll and may not continue to work.  The individual may resume employment only upon approval of the change of status to H-1B within the US.  The individual should not travel outside the US until the H-1B petition has been approved.  If an individual must travel while the H-1B is pending, he or she must consult an advisor at ISSS for instructions.

      Individuals currently working for another employer in H-1B status cannot begin work with Penn until the I-797 receipt notice from USCIS has been received by Penn. The receipt notice serves to verify proper filing of the H-1B petition. Those changing H-1B employers must continue employment with their current H-1B sponsor until we file the H-1B petition with USCIS.
      One of the following documents verifies one’s eligibility to work for specific employment connected to H-1B petition:

      • Valid I-797 H-1B Approval Notice with valid I-94 card at the bottom
      • Valid white I-94 card issued at port of entry for H-1B status
    • If the H-1B employee's adddress changes please e-mail internationalscholars@txstate.edu with the updated address so that we are able to update the H1-Bs file accordingly.

        • If the department wishes to extend the employment beyond the current H-1B authorization and the employee is eligible for additional time, a new H-1B request must be completed and submitted with appropriate fees to ISSS.  It is recommended that the department submit the extension 6-7 months in advance but no later than 45 days prior to the current H-1B expiration date. 
        • It is ultimately the responsibility of the employee and the department to be aware of the expiration date and to file an extension in a timely manner.  ISSS requires 4 weeks to process H-1B extensions and cannot compensate for untimely filing on the part of the department.  Note that an employee must be taken off payroll if their current H-1B expires and the extension has not been submitted to USCIS.
      • In these cases, the prospective employee can begin work at Penn once the H-1B petition is properly filed with USCIS, as evidenced by the H-1B receipt notice from USCIS. However, if Penn’s H-1B petition is later denied, he or she would have to stop working immediately.
      • If an individual is already in the US in H-1B status but is sponsored by another employer and wishes to start employment at Penn, the Penn hiring department must submit a new H-1B request packet to ISSS.
        • The department must inform ISSS via e-mail at oipadm@pobox.upenn.edu prior to the end of any H-1B employment if an employee resigns or his/her employment is terminated for any reason prior to the end of his/her approved H-1B employment dates.  USCIS will be notified, and the LCA will be withdrawn.
        • If the employment is terminated prior to the expiration of the H-1B employment authorization as listed on the I-797, the University is obligated by law to pay for the H-1B employee’s return fare to his/her home country.
        • The H-1B employee should consult an ISSS advisor if his or her H-1B employment with Penn ends for any reason, including voluntary resignation.  Please note that overstaying one’s authorized period of stay in the US by even one day can have serious adverse consequences for those in H-1B status.
    •  

        • The department is required to keep records of “hours worked each day and each week” for part-time H-1B employees, even if a fixed salary is paid. These records must be kept on file in the department for at least one-year following H-1B employment per DOL regulations.
        • If part-time wages are not enough to sustain living expenses for the individual and any dependents, documentation to demonstrate that the employee is able to cover living expenses should be submitted.
      • H-1B employees should always consult the International Office before traveling outside the US.
      • Furthermore, employees requesting a change of status to H-1B (and H-4) within the US should not leave the U.S. while the petition is pending at USCIS.  USCIS considers leaving the US while the petition is pending to be an abandonment of the petition.

       

    •  

        • The spouse and unmarried children under 21 years of age of H-1B employees may apply for or extend H-4 status. If the dependents are already in the US in another nonimmigrant status or H-4, the primary dependent (spouse or child) should complete Form I-539. H-4 approval documents will usually be sent directly by USCIS to the home address listed on the I-539.
        • If dependents are outside the US and plan to apply for the H-4 visa at a US Embassy or Consulate abroad, a form I-539 and dependent fee should NOT be included with the H-1B petition. Once the H-1B petition has been approved, the H-1B employee and the H-4 dependents should apply for their appropriate H visas together at a US Embassy or Consulate overseas. 
        • H-4 dependents are not authorized to work in the US under any circumstances.
        • A child may not continue to hold H-4 status upon reaching his or her 21st birthday.
LCA Worksheet : Labor Conditions Application (DOC, 49 KB)

The person responsible for employment issues in the hiring department should complete this form.

Statement of Actual Wage Determination : Statement of Actual Wage Determination (DOC, 32 KB)

Documentation on the actual wage determination is required by Department of Labor regulations in order to ensure that employers are paying similarly situated employees equivalent salaries.