Employment Based Immigration Handbook
I. H-1B Overview
I.1 H-1B Nonimmigrant Status
The H-1B is a temporary nonimmigrant status that allows foreign nationals to work in the U.S. in a position that meets the requirements of a “specialty occupation.” This means that the position must require highly specialized knowledge and skills in order to perform the job duties and must require at least a bachelor’s degree (or its equivalent).
U.S. Citizenship and Immigration Services (USCIS) grants employment authorization that is specific to the employer, duties listed, and location. In order to sponsor an individual under the H-1B classification, a U.S. employer must pay the “required wage rate," which is the greater of either the Actual Wage (wage paid to other employees in similar positions with similar qualifications and experience) or the Prevailing Wage, which is an average for the occupation in the geographic area as determined by the Department of Labor (DOL). The employer must also attest to certain working conditions under U.S. Department of Labor Laws.
Dual Intent Doctrine
In contrast to most nonimmigrant statuses (i.e., F-1 or J-1) the H-1B Beneficiary does not have to maintain nonimmigrant intent. At the expiration of a J-1 or F-1 status the presumption is that the individual will return to their home country. The H-1B form is a Petition for a Nonimmigrant Worker; however, U.S. Immigration law carves out an exception to its usual practice and allows immigrant intent. This makes the H-1B a highly coveted status, as a foreign national may have “dual intent,” which essentially means that the Beneficiary may maintain lawful temporary status and have the intention to stay in the U.S. permanently.
Timeline
As to a timeline for adjudication of an H-1B, it is difficult to estimate the exact processing time with any certainty as there are several governmental agencies involved. The DOL can take up to two months to determine a prevailing wage for the position, and subsequently USCIS may take up to six months, or at times longer (processing times are subject to change), to adjudicate a petition. Therefore, CISP strongly suggests any H-1B sponsorship request begin no less than 6 months before the intended start date to prevent a gap in employment. The sponsoring College or Department should remain cognizant of this timeframe and initiate the process with CISP about six months in advance of the proposed start date.
Although a College or Department may opt to file their H-1B petition under Premium Processing ($2500, a fee that is subject to change at the discretion of USCIS), this does not necessarily guarantee an approval and does not speed up DOL processing time. USCIS states it will adjudicate the petition within 15 calendar days; this means that USCIS will issue one of the following: 1) an approval, 2) a request for more evidence (RFE), or 3) a denial. In an RFE situation, the clock can be reset on the 15th day, so it is important to remember that even under premium processing, the petition processing time may be greater than 15 days.
Note: Premium Processing relates only to the USCIS adjudication and does not speed up the processing times of the Department of Labor.
Finite Time Period (Six-Year Limit)
The H-1B status is subject to a six-year limit. An exception may exist for individuals who are eligible for the filing of a Permanent Residency application. The petitioner may request up to three years at a time.
Another exception to the rule is that an H-1B worker may be eligible for a “new” six years if they were out of the U.S. for one year preceding their filing for another term or if work performed in the U.S. was seasonal, intermittent, or less than six months a year. Alternatively, the Beneficiary may be able to extend beyond six years if there is eligibility and timely execution of a Permanent Residency application. It is important for both the Department and Beneficiary to be cognizant of their remaining time and plan accordingly if work authorization is desired beyond the six-year maximum.
The College or Department should be aware that the submission of H-1B materials to CISP does not guarantee that the H-1B will be approved. Not all positions qualify as a specialty occupation, and the decision to grant work authority will essentially rest with USCIS and/or other governmental agencies. At all times, the sponsoring College or Department cannot provide employment until it is granted by USCIS. NOTE: This holds true even with an H-1B extension request. The College or Department must ensure that any offer of employment must be made contingent on USCIS approval.
If the hiring Department has intentions to keep an employee beyond six years, the Department is responsible for contacting CISP at the end of the fourth year of their prospective H-1B in order to see what options are available. Remember: Any and all H-1B time should be counted, including time used from previous employers.
Summary of Department Responsibilities and Potential Adverse Penalties
Please remember that the H-1B is an employer sponsored petition, and the sponsoring Colleges and Departments assume significant responsibility on behalf of The University of Toledo. Every College and/or Department is responsible for understanding and strictly adhering to the H-1B requirements found in this handbook, as well as the correspondence and documents provided to them.
The failure to follow the regulations defined in this handbook and Department forms can result in substantial penalties. Thoroughly read and become familiar with the details and responsibilities listed in this handbook as well as those forms available on our website. Please find our list of forms on our H-1B Forms for Departments and Employees page.
The Department of Labor can issue civil fines which may be severe and can range from $1,000.00 to $35,000.00. Moreover, the action or inaction of any one College or Department can have long lasting ramifications for The University of Toledo as a whole. In addition to civil penalties and fines listed above, the University could possibly face debarment from future use of the H-1B program and Permanent Residency petitions. In extreme cases, criminal penalties and possible imprisonment may be imposed.
The hiring College or Department will be responsible for adhering to all internal policies of recruitment and ensuring that their employee is following federal rules and H-1B regulations and state laws and internal policies, which include but are not limited to initial processing, I-9 verifications and updates, and internal recruitment polices.
Note: When contemplating a new hire or amendment of an H-1B, the College or Department Stakeholder must ensure that the proposed job offer and/or description has been approved by Human Resources before moving forward with the H-1B petition with CISP.
In closing, please remember that the success or failure of executing a timely H-1B or Permanent Residency application will hinge on collaboration, amicable and effectual cooperation, and communication between the College or Department, CISP, and the prospective employee.