H1B Temporary Worker

  • H-1B status strictly tied to employment and specific employer.
  • Specialty occupation (specialized knowledge, must have Bachelor's degree).
  • Employer files application with USCIS to petition for approval of H status for the beneficiary (employee).

 

Eligibility Requirements

  • On payroll (part-time okay);
  • Specialty Occupation – minimum Bachelor's degree;
  • Must be eligible based on previous H status (maximum of six years allowed);
  • J1 Exchange Visitors subject to the two-year home rule are not eligible.

 

Process

  • Complete H visa Information Form (in forms library);
  • Check Requests for fees;
  • Export Compliance Certification (forms library).
  • UCAR files application with USCIS
    • Prevailing wage must be determined (very strict regulations and if changes happen, such as change in FTE, change in position, change in location, etc., a new wage must be determined and new application filed);
    • Lab/Program must post a notice near the employee's work location;
  • Wait for USCIS approval (currently two to four months);
  • Premium Processing service is available for an additional $1225 (response within 15 calendar days and can be paid for by the employer or the employee);
  • Once approved, employee is able to set up a visa interview at Consulate;
  • H-1B holder can enter the US up to 10 days prior to the start date on their approval notice (start date = first day of employment);
  • Duration of stay reflected by I-94;
  • If currently in U.S., an Approval Notice will be sent reflecting the employee's new H status along with a new I-94 card.

 

Regulations

  • Maximum time allowed in H-1B status is six years, in three-year increments.
  • An alien who has been in H-1B status for the maximum six years is generally not eligible H-1B status until he or she has resided and been physically outside of the U.S. for one year, at which point the 6-year eligibility clock can be set to "restart" and the alien becomes eligible for a new period of H-1B stay. Brief trips back to the United States in a status other than H or L are permitted, but do not count towards fulfillment of the required time abroad.
  • H-1B status is tied to employment and a specific employer.
    • A UCAR H-1B holder cannot work for another institution unless that institution applies for a concurrent H.
    • Alternatively, an H holder sponsored by another organization cannot work for UCAR unless a transfer is processed.

 

Special Topics

  • Portability
    • When transferring employers, the new employee can start working once the application is filed and receipt received (do not have to wait for approval).
  • An H holder can have concurrent H visas with more than one employer (full or part-time).
  • Whenever a significant change in employment occurs, a new petition will need to be filed with USCIS (change in hours, salary, location).

 

Travel

  • No restrictions on travel within the U.S. (always carry H approval document/passport);
  • Travel abroad can impact a pending H application;
  • In order to travel internationally, a visitor needs the following to re-enter the U.S.:
    • Valid Passport;
    • Valid H Visa Stamp;
    • Current Approval Notice (I-797);
    • Employment Verification Letter from Human Resources.
  • Employee may need a visa to enter a 3rd country (Check with consulate of the country to determine requirements).
  • UCAR immigration services does not handle non-U.S. visas.
  • No regulations that limit amount of time out of the U.S., as long as employee remains on payroll.
  • Unpaid leaves of absence are acceptable if the employee requests the leave and they will be returning to their job after the leave. Please notify Immigration Specialist.

 

Extensions

  • May not apply for extension until six months before expiration date.
  • Processing times currently about 2-4 months.
  • Basically the same process:
    • UCAR files application,
    • Prevailing wage,
    • Posting notice.
  • Employee will receive new Approval Notice with new dates.
  • When an extension is filed, there is 240-day grace period while the application is pending in which the employee can continue to work, even if prior H status has expired.

 

Ending visit

  • No grace period once an H-1B holder is no longer employed (H status is strictly tied to employment)
  • Technically need to leave the U.S. immediately, even though this is very unrealistic.
  • HR sends letter to USCIS to notify them of employment terminations of H-1B holders

 

Things to remember for H-1B Employees

  • Change in work location, job duties or reduction of hours or salary must be reported to immigration specialist so an amended application can be filed.
  • Application process is long (3-5 months total) so plan accordingly.
  • Premium Processing service is available for a fee.
  • If an H-1B employee’s employment is terminated prior to the end date on their H-1B petition, we are responsible for paying for return airfare back to their home country.