H-1B Time Limitations

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2 H-1B Basics Employment Visa Professional Position Position must require a bachelor s degree or higher Employee must hold a bachelor s degree or higher in a related field 2

3 H-1B Time Limitations Generally limited to 6 total years May request maximum of 3 years for each petition Can be extended beyond 6 years by reclaiming time spent abroad, or if at certain stage of green card processing (labor certification pending one year, approved I-140, or I-140 pending for more than one year) 3

4 University of Virginia Responsibilities File a Labor Condition Application (HRCIS completes with information provided by the Dept) Document wages paid (Dept) Maintain Public Access File (HRCIS) Pay return trip home for early termination (Dept) 4

5 Responsible Government Agencies USDOL Certifies Labor Condition Application Regulates work conditions Requires Job Postings Audits Public Access file USCIS Adjudicates H-1B petitions (Form I-129) Regulates and monitors non-immigrant s status Requires employer to pay return trip home 5

6 Prevailing Wage The actual wage must meet 100% of the Prevailing Wage (PW) or exceed it but can never go below the PW. HRCIS generally reviews sponsoring departments position description, and minimum position requirements, and determines proper wage via U.S. Dept. of Labor wage guidelines for employment at higher education institutions. 6

7 Processing Times Standard Dependent Upon USCIS California Immigration Service Center Processing Pace Generally 3 to 5 months HRCIS prefers to initiate process 6 months prior to first date of employment Premium Request case to be adjudicated within 15 calendar days upon receipt of petition by immigration service center Receive approval notice Receive original approval notice, Form I-797, 7 10 days after approval 7

8 H-1B Petition Types New H-1B (Change of Status, Consular Processing) H-1B Extension H-1B Transfer (Portability) H-1B Amendment (often combined with extension) 8

9 New H-1B Petition Consular Processing foreign national entering U.S. from abroad, allow additional time for consular interview and processing Change of Status move from another visa status, typically F1, J1, or H4 9

10 H-1B Transfers (Portability) Those in valid H1B status elsewhere can begin employment at UVA only after HR/CIS receives confirmation from USCIS that a petition was filed. HR/CIS prefers to have the request for the transfer around 1 to 2 months prior to the new employment start date. Transfer applications are not automatically approved so there are risks involved in the process. 10

11 H-1B Extension Petitions for extensions should ideally be made no later than 6 months before the current H1B status expires. Employment may continue up to 240 days past the expiration of the current H1B status. Travel outside the U.S. is not recommended while an H1B extension is pending as USCIS may deem employee has abandoned their H1B status. An extension request can only be filed if the employee is currently in the United States Suggest upgrade to premium processing if travel is absolutely necessary. If employee is outside the U.S., then he/she must wait outside the U.S. until new H1B status has been approved. 11

12 H-1B Amendment Any substantial changes to position may require filing an amended petition: Position Title Salary Position Duties Department Hours worked Work location (including sabbatical, temporary assignment elsewhere) 12

13 The J-1 Two Year Home Residency Requirement Many individuals in J-1 status are required to return to their home country for two years after completing their program. Unless they fulfill this obligation or receive a waiver of the requirement, they can not change their status to H1B. The waiver can take up to one year to obtain. Application made by the foreign national at their own expense. 13

14 Department Fee Obligations/USCIS $325 for any H1B petition, USCIS Form I-129 filing fee $500 fraud prevention and detection USCIS fee for all new H1B petitions and for all H1B transfers to UVA. The $500 fee is not imposed on H1B extension petitions. 14

15 Department Fees HRCIS Processing Fees as of October 1, 2011 $800 for all H1B petitions filings. $700 for expedited service All USCIS and HRCIS fees, with one exception, must be paid by the sponsoring department. The foreign national may not reimburse the department for these expenses. 15

16 Additional H-1B Petition Filing Fee for USCIS Expedite Request Additional $1,225 fee to request Premium Processing, USCIS Form I-907. Request to USCIS to adjudicate an H1B petition within 15 calendar days of receiving the H1B petition. The employer or employee may pay the fee. Receive electronic approval notice that may be used to place employee on payroll. 16

17 H-1B Process at UVA Departments contact the H1B advisor. The advisor will determine if the H1B is the best option. Department downloads H1B Packet from HR/CIS website Department and foreign national cooperate to complete and provide necessary documentation 17

18 UVA H-1B PROCESSING INS ZOOM INSZoom is a comprehensive electronic immigration management system. Enables electronic data transfer between HR CIS, departments, faculty and staff. Access to foreign nationals linked to department, review immigration history and documents, submit H-1B packet information through INSZoom, track petition filing process 18

19 Part-Time H-1B Employment U.S. Dept. of Labor requires employers to keep records of hours worked each day and each week for all part-time H-1B employees. Regardless if part-time employee is paid a fixed salary, and regardless of whether employer currently keeps records of its other part-time salaried employees. Sponsoring department must complete and return HRCIS form: Verification of Part-time Record Keeping 19

20 Other H-1B Issues Wage requirements (prevailing wage) All financial support must come from UVA Length of processing time Job site specific Expense related to expedited processing of petitions Dependents of H1B s (H4) are not allowed to work No Official Grace Period for H1B holders after their period of authorized stay ends, or after their employment terminates. 20

21 Visa Issuance for Entry to U.S. The only place a visa stamp can be issued is at a U.S. consulate or embassy abroad. Renewals of H-1B visas (entry stamps in the passport) within the U.S. are no longer possible. I-797 does not allow travel, but does authorize employment while in the United States 21

22 TRAVEL WARNING! FOR FOREIGN NATIONALS PLANNING TO TRAVEL ABROAD: The U.S. Department of State (DOS) and the U.S. Department of Homeland Security (DHS) have increased the level of review that international visitors face at U.S. Embassies and Consulates abroad, at airports, and at border crossing posts with Canada and Mexico. The U.S. State Department processing time for a security screening at a consulate abroad is currently 12 weeks, with no option available for expediting the process. 22

23 TRAVEL ADVISORY Each foreign national, in consultation with their department if appropriate, should make their own decision regarding travel abroad. HRCIS advises undertaking travel abroad with the understanding that returns to the U.S. may be significantly delayed All foreign nationals traveling abroad should be certain to carry documentation supporting their current visa status. 23

24 H-1B Visa Holder Leaving UVa? Termination Transfer to another institution Leaving the United States Departments should immediately notify HRCIS LCA Withdrawal (USDOL) H-1B Withdrawal (USCIS) 24

25 When should UVa. Depts. Contact HRCIS? Anytime there is a change to an H-1B Visa Holders employment situation. Anytime an employment immigration document needs to be signed Prior to hiring a foreign national Anytime

26 New H-1B Developments Export Control Attestation now required Department must submit I-129 Export Certification Request to Office of Export Control Include advisory letter with H-1B petition materials submitted to USCIS 26

27 Q & A Human Resources Compliance & Immigration Services 914 Emmet Street, P.O. Box , Charlottesville, VA Tim White (434) tjw5x@virginia.edu Fax: (434)