Obtaining H-1B Status
Eligibility for H-1B Status
The H-1B is a non-immigrant visa that is widely used for the temporary employment of foreign nationals in specialty occupations. A specialty occupation is defined by the Immigration and Nationality Act as an occupation which requires the theoretical and practical application of a body of highly specialized knowledge requiring the attainment of a bachelor's or higher degree as a minimum for entry into the occupation. Universities, colleges and nonprofit research institutions are exempt from the H-1B visa numerical cap.
J-1 Visa holders subject to the two year home residency requirement are not eligible for H-1B visa status unless they return home for two years or obtain a waiver of the requirement from the U.S. State Department, Waiver Review Board. A J-1 scholar will be subject to the requirement if the scholar:
- Received funding for his J-1 program directly from his home government or US government or certain international agencies.
- Possesses a skill needed in his or her home country as indicated on the "Skills List”.
- Is in the U.S. to receive medical education or training.
Period of Authorized Stay
An H-1B petition for an initial H-1B or extension can be authorized for up to a maximum of three years. Extensions of stay may be authorized for subsequent periods of employment, not exceeding a total of 6 years. An individual who has been in the United States in an H status for six years is ineligible to hold further H-1B status until he has spent one year outside the United States. Extensions beyond the six-year limit are only available under certain restricted circumstances. For example, if the H-1B six year time limit is reached and a year or more has passed since a Labor Certification, or an immigration petition for alien worker or an adjustment of status application was filed, an H-1B visa may be extended in one year increments, until the decision is made on the green card petition.
If the foreign employee is in another visa status (e.g., F-1/ OPT, J-1, TN, etc) while the H-1B visa petition is being processed, the employee may continue to work until the current work authorization expires. However, if the current work authorization expires, the employment must be terminated until the H-1B is approved.
An employee, for whom the employer has filed a timely H-1B extension application, may continue employment with the same employer for up to 240 days beyond the expiration of the prior period of authorized stay. The application must be received by the United States Citizenship and Immigration Service (US CIS) before the expiration of the current period of H-1B status.
An individual who must travel to the United States to take up a position as an H-1B worker may enter the United States no earlier than ten days before the H-1B approval period. An individual who must leave the United States must leave on or prior to the expiration date on their I-94. There is no grace period for H-1B holders after their authorized stay ends. However, if an H-1B holder was admitted for the validity period of the approved H petition plus 10 days after the end of the validity period, then the H-1B holder may stay for up to ten days after the expiration of the H-1B status. Employment is not permitted during either ten-day period.
Terms of H-1B Employment
An H-1B worker may work only for the employer who filed the H-1B petition. However, H-1B status is “portable”. If an H-1B worker gets a new job offer, the H-1B status holder may begin work with the new employer soon after the new employer properly files a new H-1B petition with the United States Citizenship and Immigration service (USCIS). The employer and the employee do not have to wait for the new H-1B petition to be approved.
An H-1B employee can work only in the position that was described in the H-1B petition. Before an H-1B employee’s terms of employment are changed, including a change in the job title, promotion, or transfer of department, the International Services office must be informed, in order to ensure compliance with H-1B regulations. The International Services office must also be notified when employment is terminated early.
The employer is liable for the cost of return transportation to the alien’s home country or last permanent residence abroad if the employer terminates the alien’s position before the end of the period specified on the H-1B visa. It is therefore important that hiring departments apply for H- 1B status for only the time period for which funding is guaranteed.
An H-1B worker may study or attend classes. However, studying must be incidental to the alien’s employment, and not the alien’s primary purpose in remaining in the United States.
The H-1B Process
The documentation required for all H-1B processes (new, concurrent, extension, transfer, or amendment), is virtually the same. Therefore the “H-1B Request Form” and the “H-1B Checklist” is applicable for all H-1B processes.
It is extremely important that hiring departments allow sufficient time between the job offer to a foreign national and the start date of the employment so as to allow for the completion of the H- 1B visa process. Except under the “portability” rule explained above, employment is not permitted until the US CIS approves the petition to hire the foreign national. US CIS takes three to six months to process an H-1B petition.
If the foreign national is outside of the United States, he will have to go to the U.S. Consulate abroad to obtain an H-1B visa in his passport in order to enter the United States in H-1B status. This step may increase the H-1B processing time by days or weeks.
Department of Labor Requirements
Before the H-1B petition is submitted to the US CIS, a Labor Condition Application (LCA) is submitted to the United States Department of Labor (DOL) for certification. DOL takes an estimated 7 work days to process the LCA.
On the LCA, the employer must attest to the following:
- That the H-1B employee will be paid the prevailing wage for the occupation in the area of employment, or the actual wage at the place of employment, whichever is higher.
- That the H-1B employee will be paid for non-productive time, and will be offered benefits on the same basis as U.S. Workers
- That the working conditions of other employees will not be adversely affected by the employment of the H-1B worker.
- That there is not a strike, lockout or work stoppage in the course of a labor dispute in the occupation in which the H-1B non-immigrant will be employed at the place of employment.
- That the employer is posting a notice of the filing of the LCA, and the notice will remain posted for 10 days at the place where the H-1B employee will work.
The employer is required to develop and maintain documentation supporting the above labor condition statements.
For an additional fee of $1,225 US CIS guarantees to process an H-1B application within 15 calendar days of the receipt of the petition. If the petition is not processed in 15 days, the premium processing fee will be refunded. According to LSU institutional policy, H-1B filing and expedite processing fees are the responsibility of the hiring department. The employee may pay the premium processing fee if the need to premium process is personal rather than employment related e.g. if the employee needs the H-1B expedited so that they can travel abroad on a personal trip.
Dependent spouses and children under 21 of H-1B foreign employees are classified as H-4. When an H-1B petition is filed on behalf of a foreign worker who is already in the United States, dependents who want to change to H-4 or to extend their H-4 status must file Form I-539. If the dependents are outside the U.S., form 1-539 is not filed. The dependents apply for H-4 status at a U.S. consulate abroad after the H-1B principle has been approved. Employment is not permitted in H-4 status. However, an H-4 visa holder may apply for a work permit when the H-1B principal has completed certain steps of the permanent resident process. H-4 visa holders may attend school full or part time.
LSU Employee Information
Maintaining H-1B Status
You are permitted to remain in the US as long as you maintain your H-1B status. If you fail to do so, you may be considered unlawfully present and may be subject to deportation. Therefore, it is essential to do the following:
- Ensure that your passport is valid at all times, unless you are exempt from passport requirements.
- Work only for the employer(s) that have obtained an H-1B on your behalf. Employment in H-1B status is limited to the employer specified in the H-1B petition. Any work outside LSU, even short-term consultation, will need to be authorized by immigration; that is, you can work for another employer only if you have a concurrent H-1B filed by that employer, or an employment authorization card.
- Report any proposed changes in employment conditions. Employment is limited to the specific terms and conditions specified in the H-1B petition. Some examples of significant changes that must be reported to International Services office include (but are not limited to) the following: change in job duties, change of department, promotion, demotion, and change in percent effort.
- Report any change of address on Form AR-11 to the USCIS within 10 days of the change. In accordance with the Department of Homeland Security regulations, you are required to notify the United States Citizenship and Immigration Services (USCIS) of a change of residential address within 10 days of the change by completing Form AR-11 found on the USCIS website. You do not need to inform the International Service about the change of address.
- Ensure that the processing of the H-1B petition to extend your stay is started in a timely manner (about six months in advance), then processed by IS and received by USCIS prior to the expiration of your current H-1B status. This is YOUR responsibility
- If you resign from your job or are terminated, you are considered to be out of legal status (if you have no other petition currently pending with the USCIS).
- Remember that H-4 dependents are not authorized to work, unless they have a work permit obtain through the permanent residence process.
International travel while change or extension of status application is pending
You must be physically present in the U.S. at the time of filing AND during the entire period that a petition for CHANGE of status is pending. If you leave the U.S. while the petition is pending, Immigration will hold that you have abandoned the request for change of status and you will need to apply for a visa and re-admission to the U.S. before you can start employment in the new status. If you must travel while your application for change of status is pending, please notify the International Services office right away. While it is acceptable to travel abroad while an application for EXTENSION of stay or status is pending, there are some timing issues that may cause you serious problems if not well considered. Therefore, please contact us if you plan to travel while an application for extension of status is pending.
International Travel Requirements
Upon admission to the United States, the port of entry officer will place an admission stamp in your passport, indicating the place of admission, date of admission, class of admission, and the expiration date of your immigration status. The officer will create an electronic record which will immediately be available on this website: US Customs and Border Protection. You will be able to access the website and to print out the electronic record by providing your biographic information and passport and entry information. This printout is your paper I-94, a very important document. You should print out this I-94 as soon as you arrive at LSU, because you will likely need the paper I-94 to complete Form I-9 (Employment Eligibility Verification). The paper I-94 may also be required for you to apply for benefits such as social security number or driver’s license.
The Form I-94 shows the following:
- That you have been legally admitted to the United States,
- The class of admission i.e., the visa used to enter the United States
- The date you entered the United States, and
- The authorized period of stay i.e., "Admitted until…" date.
Please note well: Form I-94 is your most important immigration document. The expiration date on the I-94 controls your period of stay in the United States – not the visa or I-797. Overstaying the expiration date on the I-94 will have serious consequences:
- Your visa in the passport becomes void. It is automatically canceled.
- You will need to leave the country as soon as possible to apply for a new visa in your home country
- All future visa applications must be done at your home country US Consular Post
Watch for any mistake on the I-94, and if you notice any, notify us immediately.
I-94 Attached to Form I-797
While the I-94 is issued whenever you enter the United States, the I-94 is also often attached to Form I-797, the Notice of Approval issued when an extension or change of non-immigrant status is approved by Immigration. The Form I-94 for the approved period of stay is attached as the bottom portion of the I-797. Please take the time to read what is written on your new I-94 when we give you your Approval Notice. The attached I-94 allows you to hold valid proof of status after an extension or change of status without the need to leave or reenter the U.S.
Sometimes the request for extension of status (EOS) or change of status (COS) is denied. If this happens, the Approval Notice will not bear a new I-94. In this case, the I-797 Approval Notice will include a Notice of Decision which explains the reason why the EOS or COS was denied. Since the request for the classification (such as H-1B) would be approved (and only the request for EOS or COS denied), you will need to exit the country, apply for a visa, and if approved attain a new I-94 upon reentry, before you can begin work in your extended or new status.