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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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  • 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.
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        • 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.
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        • 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.
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        • 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
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      For information on change of address click here

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        • 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.
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        • 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.
        • 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.
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        • 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.
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        • 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.
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      • H-1B employees should always consult ISSS 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.
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        • 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.