H-1B temporary workers are defined under immigration law as foreign nationals working in a specialty occupation. Specialty occupations are those that “require theoretical and practical application of highly specialized knowledge obtained through a course of study that culminates with a bachelor’s degree or its equivalent”. The H-1B is based on an employer/employee relationship with wage requirements set by the US Department of Labor (DOL). Both the job and the employee must qualify under the H-1B regulations.
If your department is considering sponsoring an H-1B worker, please contact Nancy Lauland with the OISS office to discuss the visa option, and submit the following documents to email@example.com. The department that is sponsoring H-1B status for the employee must initiate the petition process with OISS; the employee cannot start the process on their own. The H-1B documentation must be submitted to OISS as far in advance (3-6 months preferred) to ensure timely processing. Please note that it takes OISS a minimum of 3-4 weeks (sometimes longer) to prepare and file any type of H-1B petition, so please plan accordingly.
Employer-sponsored: The H-1B petition must be filed by the employer, rather than the employee.
Professional level: The position offered must require the skills and services of a professional and the worker must have the professional credentials to fill it.
Education level: The minimum educational level acceptable is a bachelor's degree in the field of the proposed employment.
Employer-Employee Relationship: The employment relationship must be defined by contract or employment offer letter, which specifies the terms of the employment, such as the job title and duties, dates, salary, and benefits offered.
Position, salary, location, and employer-specific: Changes in the terms and conditions of the employment after approval require filing a new or amended H-1B petition.
Wages: The employer must pay a regular salary to the H-1B. Wages must be reported to the IRS as earnings and must be subject to federal, state and local payroll tax deductions, and to FICA ("Social Security") deductions.
Time limits: An employee is allowed to hold H-1B status for a total of up to six years. An employer may request up to three years on the initial H-1B petition and extensions may be requested for a maximum period of three years. Time spent outside of the U.S. may be "recaptured" if the absence is documented and thereby would not count towards the six year limit. After working in the U.S. in H-1B status for six years, an H-1B employee can become eligible for another six-year period if s/he remains outside the U.S. for one year or more. Certain individuals with pending Permanent Residency petitions may be eligible for extensions beyond 6 years.
Extensions: The process for extending H-1B status is identical to a new H-1B status, or amended H-1B status due to a change in employment. It also involves a similar cost to the employer. It is recommended to start the extension process at least 4-6 months prior to the expiration date.
Dependents: Spouses and children under the age of 21 are eligible for H-4 status. H-4 Dependents are not allowed to accept employment except in limited situations.
Return Transportation: The hiring department must agree to pay return airfare for the applicant and any H-4 dependents if the department terminates the employment before the H-1B approval expires. This is not required in case of voluntary termination initiated by the employee.
Dual Intent of H-1B Status: This status allows for the possibility of applying for an immigrant visa in the future. The intent to remain permanently in the U.S. will not jeopardize the H-1B nonimmigrant status.
J-1 Two-Year Home Country Physical Presence Requirement: An employee who has been in J-1 or J-2 status and is subject to the Two-year Home Country Physical Presence requirement, must either satisfy this requirement by returning to his/her home country for two years, or by obtaining a waiver of this requirement before being eligible for H-1B status. The waiver process can take from three to twelve months.
Listed below is a full description of the steps involved in obtaining H-1B approval for a position.
1. The Tulane employing department contacts the OISS to determine if an H-1B status is appropriate. NOTE: A nonimmigrant who has been in J-1 or J-2 nonimmigrant status and is subject to the Two-Year Home Country Physical Presence Requirement, must either return to his/her home country for two years, or obtain a waiver of this requirement before being eligible for H-1B status. The waiver process can take from three to twelve months.
2. Department submits H-1B Departmental Request and supporting documents to the OISS; filing fees should be requested through the accounting office.
3. OISS reviews department request and prepares the petition. If documents are missing, OISS will contact the department.
4. OISS submits the Labor Condition Application (LCA) to the U.S. Department of Labor within 30 days of 10 day posting.
5. OISS obtains the certified LCA, and submits the H-1B petition to United States Citizenship and Immigration Services (USCIS).
6. Wait for USCIS approval (2-4 month processing time)
Wages and Benefits The employer attests that H-1B nonimmigrants will be paid an actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question or the prevailing wage level for the occupational classification in the area of intended employment. The employer also attests that it will pay H‑1B nonimmigrants the required wage for time in nonproductive status due to a decision of the employer or due to the H‑1B nonimmigrant's lack of a permit or license. The employer further attests that H-1B nonimmigrants will be offered benefits or eligibility for benefits on the same basis, and in accordance with the same criteria, as offered to U.S. workers. [20 CFR 655.731]
Working Conditions The employer attests that the employment of H-1B nonimmigrants in the named occupation will not adversely affect the working conditions of workers similarly employed. The employer further attests that H-1B nonimmigrants will be afforded working conditions on the same basis, and in accordance with the same criteria, as offered to similarly employed U.S. workers. [20 CFR 655.732]
Strike, Lockout, or Work Stoppage The employer attests that on the date the Labor Condition Application is signed and submitted, there is not a strike, lockout, or work stoppage in the course of a labor dispute in the named occupation at the place of employment and that, if such a strike, lockout, or work stoppage occurs after the application is submitted, the employer will notify DOL ETA (Employment and Training Administration) within three (3) days of such occurrence and the application will not be used in support of a petition filing with USCIS for H-1B nonimmigrants to work in the same occupation at the place of employment until ETA determines the strike, lockout, or work stoppage has ceased. [20 CFR 655.733]
Notice The employer attests that as of the date of filing, notice of the Labor Condition Application has been or will be provided to workers employed in the named occupation. Notice of the application shall be provided to workers through the bargaining representative, or where there is no such bargaining representative, notice of the filing shall be provided either through physical posting in conspicuous locations where H-1B nonimmigrants will be employed, or through electronic notification to employees in the occupational classification for which H-1B nonimmigrants are sought. The employer also attests that each H-1B nonimmigrant employed pursuant to the application will be provided with a copy of the certified Labor Condition Application, and provided with a copy of Form ETA 9035CP if requested. This notification shall be provided no later than the date the H-1B nonimmigrant reports to work at the place of employment. [20 CFR 655.734]
Employer Dependency The employer is not H-1B dependent as defined at 20 CFR 655.736 and has not been found to have committed a willful violation of the H-1B federal law or regulations, or a misrepresentation of a material fact during the five (5) year period preceding the date of the filing of the Labor Condition Application.
Required Filing Fees: (to be paid by the hiring department)
$460 Petition Fee: mandatory for all H-1B petitions (including extensions);
$500 Anti-Fraud Fee: mandatory in all new cases except H-1B extensions;
Optional Fees for the H-1B Visa: $2500 Premium Processing Fee: if expedited processing is necessary, departments must pay the premium processing fee as part of the business expense of the H-1B petition. The Department must not require the employee to pay, unless the reason is due to certain personal circumstances, such as traveling abroad for presentations or vacations. Unless there is a clear benefit to the worker (distinct and separate from any benefit to the University), the Department must pay the $2500 fee.
I-539 Application fee for H-4 dependent application (to be paid by the employee): $370, check should be made payable to “U.S. Department of Homeland Security” and submitted directly to Tulane OISS.
For issues concerning H-1B faculty and staff, please contact Nancy Lauland at firstname.lastname@example.org.
1. What is an H-1B?
The H-1B is an employer-sponsored nonimmigrant classification which allows individuals to work in a specialty occupation for up to six years with very limited exceptions. "Employer-sponsored" means that the employer must apply for the H-1B on behalf of the prospective H-1B employee through the United States Citizenship and Immigration Services (USCIS). "Specialty occupation" means a position that requires specialized knowledge and skills, and at least a bachelor's degree in that specialty. The H-1B also requires that the employer pay the H-1B employee the prevailing wage or the actual wage, whichever is higher. The prevailing wage is the salary paid to workers in similar occupations in the geographic area of the intended employment. The actual wage is the wage that the employer pays employees in similar occupations at the location of the intended employment.
2. What kinds of occupations qualify for H-1B status?
A broad range of professional occupations qualify for H-1B status. Generally, professional-level occupations in engineering, biological, physical, social sciences, mathematics, and business administration will qualify for H-1B. A bachelor's degree is always the minimum requirement for an occupation to qualify for H-1B status, but depending on the position, an advanced degree (Master's or Ph.D.) may be necessary.
3. Who is eligible to obtain H-1B status?
H-1B status is available to a person who has been offered a temporary professional position by a U.S. employer. A bachelor's degree or higher in a related area is the minimum educational level required for a position to qualify for H-1B status, and the H-1B employee must have this degree (or higher).
4. Am I eligible for H-1B status since I have a bachelor's degree?
Not necessarily. The job itself must require a bachelor's degree or higher in a specialized field. You must then have that degree to qualify for H-1B status.
5. Is there a minimum salary for a job in H-1B status?
Yes, the employer hiring an H-1B worker, must have documentation to prove, and then must certify to the U.S. Department of Labor (DOL) that it will pay the H-1B employee the prevailing wage or the actual wage, whichever is higher. The prevailing wage is the salary paid to workers in similar occupations in the geographic area of the intended employment. The actual wage is the wage that the employer pays employees in similar occupations at the location of the intended employment. The employer must also certify that it is not displacing any U.S. workers to hire the H-1B applicant, and that there are no strikes or other work stoppages in the occupation in which the H-1B applicant will be employed. The employer makes these declarations, under penalty of perjury, by submitting to DOL for certification a form called a "Labor Condition Application" (LCA).
6. What must the employer do to hire an H-1B worker?
After receiving the certified Labor Condition Application (LCA) from DOL, the employer then submits a petition (application), with supporting documentation to the USCIS. There is a USCIS filing fee for all H-1B petitions as well as additional fees for certain H-1B petitions. Please see the USCIS (link is external) website on fee information.
7. How long does it take to obtain H-1B status?
The amount of time required to obtain H-1B status varies according to circumstances at the particular employer, DOL and the USCIS. The total processing time at DOL including prevailing wage determination (if necessary)/LCA, and USCIS processing can take as long as six to seven months or longer. Processing times at the USCIS service centers can vary, and you can check their processing times at the USCIS website(link is external).
8. When is the best time to submit the H-1B application to the USCIS?
The earliest an H-1B application can be submitted to the USCIS is six months prior to the selected H-1B start date. For employers who are subject to the cap (and because the cap may be reached early every year), it is best to submit the H-1B application in April for the start of the new fiscal year on October 1 when the new batch of 65,000 H-1B visas become available.
9. Can I obtain an H-1B while I'm residing outside of the U.S.?
Yes, it is possible for an employer to apply for the H-1B on your behalf while you are residing outside of the U.S. Once approved, you would obtain the H-1B visa stamp at an U.S. Embassy/Consulate and enter the U.S. in that status.
10. Can I change jobs after I get my H-1B?
An H-1B approval is employer-specific. It permits an H-1B status holder to work only for the employer that filed the petition. If you decide to change employers, the new employer must apply for the H-1B on your behalf. Consult with an immigration attorney if you are planning to terminate your employment or learn that your employment is being terminated. The H-1B is also position-specific. Therefore, if your H 1B employer wishes to significantly change your job duties or other conditions of employment after securing approval of your H-1B petition, the employer is required to submit an amended petition to the USCIS. In both of these cases, under certain conditions, you MAY be eligible to be paid in the new position after the employer has received the USCIS receipt notice for the H-1B petition (this is called "H-1B portability").
11. Is H-1B status the only way that I can qualify to work in the U.S.?
You may be eligible for other types of nonimmigrant (temporary) status that would allow you to work in the United States such as the treaty/trader investment classifications, the TN status for Canadian or Mexican citizens, the J-1 exchange visitor status, the E-3 status for Australian citizens, or the O-1. An immigration attorney can advise you about the eligibility requirements for these immigration categories.