H-1B Sponsorship Steps

H-1B Sponsorship Steps

 

▼   H-1B Application Steps – For Departments
  1. Request Prevailing Wage (please complete Appendix A; Part 1 on Page 5):
    Current processing time for obtaining a Prevailing Wage Determination from the U.S. Department of Labor is approximately 12 weeks.  The Office of Immigration encourages you to reach out to us to start the PWD process as early as possible, even if it is not certain that you will hire an international employee in need of H-1B support.

    If you are in the midst of a search or will be beginning a search that has a possibility of an international hire, please complete a Prevailing Wage Request Form (Appendix A, Section 1 on Page 5 of this Packet) and send it to Maurice Chavarry at mchavarry@southalabama.edu as soon as possible. The Office of Immigration can begin the PWD process based on a few key details from the job posting well in advance of a possible job offer.  Additionally, this part of the process will not commit USA to hiring an individual or to sponsorship of an H-1B; it simply helps us to get an official wage determination from DOL.
  1. Request H-1B processing (please complete Appendix A): To initiate the H-1B process, the department should complete the Appendix A section of this packet, providing details on the job position and a copy of the appointment/job offer letter (if already prepared). this information, the Office of Immigration will determine the prevailing wage as established by the U.S. Department of Labor.  The other component of wage determination is the review of Actual Wages paid to employees within the department.

    Once the Office of Immigration determines the prevailing wage and actual wage, we will consult with the department if it appears the offered salary does not meet the Department of Labor’s wage requirement.  The department must pay at least the prevailing wage or the actual wage (the rate paid to similarly situated employees), whichever is higher.  If this minimum salary exceeds the amount the department wishes to pay the H-1B applicant, the Office of Immigration will consult the department about other options.  The department might choose to increase the salary or explore other visa options for the applicant.
  1. Complete the Deemed Export Form (please complete Appendix B). In support of your request for H-1B sponsorship, the Office of Immigration is required to certify on the USCIS I-129 petition whether or not a license for export controlled technology or technical data is necessary for the professor/researcher being sponsored. To facilitate this requirement, all host departments are required to complete an attestation as to whether or not the H-1B worker will require a license for export controlled technology or technical data.
  1. Complete the H-1B Actual Wage Determination.
  1. Send documents to the Office of Immigration: The H-1B Request (Appendix A), the Deemed Export Form (Appendix B), and the Actual Wage Determination may be sent as soon as they are complete.  The LCA posting notice should be sent back to our office upon completion of the 10-day posting period.  Please send all documents to Maurice Chavarry at the Office of Immigration Meisler Hall 2200.
  1. Post the LCA Notice: The Department of Labor and H-1B petition procedures require employers to inform its workforce of its intention to hire an H-1B worker through the postings of two Labor Condition Applications (LCA) at the employer’s location.  To comply with this rule, Office of Immigration will send two copies of the LCA Notice via email to the hiring department to be posted in two conspicuous locations (i.e. break room, copy room, front office).  This LCA must be posted for a minimum of 10 consecutive business days.  A Notice of Filing and instructions for posting will be included with the LCA Notice.  Upon completion of the necessary 10-day posting period, please complete the Notice of Filing by indicating the posting dates, the responsible individual, and sign the Notice at the bottom.  Please return the completed notices to Maurice Chavarry Sr. via campus mail at Office of Immigration, Meisler Hall Room 2200.  The posting date/notices are necessary for the H-1B process to move forward.
  1. Process Check/Direct Pay Request for USCIS Fees (please see Appendix C).
  1. Receipt of Approval Notice. Upon receiving the Approval Notice (I-797) from USCIS, the Office of Immigration will notify the employee and ask him or her to come to report to our office.  If the individual is abroad awaiting the approval notice in order to apply for an H-1B entry visa at a U.S. consulate, the Office of Immigration will contact the department to discuss mailing options.
▼   H-1B Application Steps – For Prospective Employee

1) Provide immigration information and history (complete Appendix D on pages 11 – 12 of the H-1B Application Packet). The documents should be submitted to the hiring department.  Once the department initiates the H-1B sponsorship process by submitting the Appendix A forms, Appointment Letter and Appendix D forms, the Office of Immigration will contact the H-1B beneficiary with any questions or requests for additional information that is required. The following documents should be submitted with Appendix E forms:

  1. Copy/Scan of Current CV/ Resume
  2. Copy/Scan of all university-level academic degrees, diplomas, and transcripts/mark sheets
    1. Diplomas and transcripts/mark sheets do not have to be originals
    2. Documents not in English must be translated by someone competent to do so
    3. Degrees or documents issued by non-U.S. institutions will have to have a foreign credential evaluation (the Office of Immigration can recommend an evaluator)
  3. Copies/Scans of 4 most recent pay stubs/ paycheck notifications, if currently employed in the United States
  4. Copy/Scans of ALL current and previous immigration documents:
    1. Passport identification page
    2. Current/ most recent visa stamp
    3. I-94 Record
    4. All previous I-20s, DS-2019s, and H-1B/H-4 I-797 Approval Notices, etc.
    5. Employment Authorization Card (e.g. EAD Card for F-1 OPT or J-2 EAD Card)
  5. If currently or previously on J-Visa and determined to be subject to the 212(e) Two-Year Home Residency Requirement, submit a Copy/Scan of I-612 waiver approval, Department of State recommendation for waiver, or evidence of completion of 212(e) Two-Year Home Residency Requirement.

2) H-4 Dependent Sponsorship. If a prospective H-1B employee has dependent family members (spouse or children) whom the H-1B employee would like to sponsor for H-4 visa status, the H-1B employee will need to consult with International Student and Scholar Services about processing the H-4 visa support.

For sponsorship of dependents already in the U.S. to either extend or obtain H-4 status, the prospective H-1B employee will need to submit documents for concurrent filing with the H-1B petition.

  • Form I-539 (available at http://www.uscis.gov/i-539) and check for $370 made payable to “U.S. Department of Homeland Security”
  • Copy of Passport Identification Pages
  • Copy of Current/ most recent Visa Stamp
  • Copy of I-94 Record
  • Copy of all previous I-20s, DS-2019’s, and H-1B/H-4 I-797 Approval Notices, etc.
  • Copy of Employment Authorization Card (e.g. EAD Card for F-1 OPT or J-2 EAD Card)

For dependents currently outside of the U.S. and will enter the U.S. in H-4 status at a later date, the Office of Immigration can advise on how they may obtain H-4 status abroad.

H1-B Visas, Travel Information, and Possible Visa Delays

H-1B employees should contact the Office of Immigration for information on travel requirements. H-1B visa requirements can vary by consular location, therefore, please refer to the particular United States Consulate/Embassy that you will visit. A list of embassy websites is available at http://www.usembassy.gov/. Employees and departments should be aware that security checks, which are part of visa processing, may delay an employee’s entry/return to the U.S. Additional information is available in the H-1B & H-4 Travel section.

▼   Portability/Transfers, Amendments, & Extensions

Portability/Transfers – Change of H-1B Employers
If a hiring department wishes to sponsor an individual who is already in the U.S. in H-1B status through another employer, the University of South Alabama must file a petition for change of employer with USCIS. In order for the individual to remain in the U.S. in H-1B status and start working at the University of South Alabama, USCIS must receive the new petition, with $460 filing fee and $500 anti-fraud fee, before the individual’s last day working for the previous employer.

According to the U.S. Immigration and Naturalization Act as amended by the American Competitiveness for the 21st Century Act of 2000, [AC21 § 105], [INA § 214 (a) (m)], as long as USCIS receives the petition before the individual’s last day working for the previous employer, the individual may work at the University of South Alabama on the basis of the I-797 Receipt Notice from USCIS. The documentation required from the department for the change of employer petition is the same as that of a new petition.

Amendments – Changes in Terms of Employment
Departments must consult with the Office of Immigration prior to changing an H-1B’s terms of employment (including changes to job duties or department) to determine whether an amended petition is required.

According to US Immigration Regulations 8 CFR 214.2(h)(2)(i)(E), an amended H-1B application is necessary if the H-1B worker’s job duties change significantly (e.g. from postdoctoral research to college teaching) or when there is a significant change in salary which would require the filing of a new LCA with the Department of Labor.

Minor changes in the conditions of employment do not require the filing of an amended H-1B petition.  Though, minor changes should be noted in any future extension of H-1B status.  Minor changes would include a change of job title with no or minimal changes in job duties or an unsubstantial salary increase.

H-1B Extensions
The process for requesting an extension of H-1B status is the same as for the initial period of H-1B employment. The department and employee must complete the H-1B Application Packet (PDF).

The Office of Immigration and USA must file the extension petition with USCIS prior to the current approved H-1B status end date to avoid interruptions in employment. According to 8 C.F.R. § 274.12 (b) (20), the employee may continue to work for a period of 240 days while an extension petition is pending, as long as it is timely filed before the current end date.

Please note:  An extension of H-1B status allows the employee to continue working in the U.S.; however, it does not extend his or her H-1B entry visa, which is required for re-entry into the U.S. after traveling abroad. If the H-1B employee wishes to travel outside the U.S. after the expiration date of his or her current entry visa, he or she must apply for a new entry visa at a U.S. consulate.

▼   Completion of Employment

The Office of Immigration must be informed immediately if an H-1B worker’s employment is terminated prior to the end-date of the H-1B sponsorship.  This is necessary whether it is either voluntary or involuntary separation.

The U.S. Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) must be notified to withdraw the Labor Condition Application (LCA) and H-1B petition.  The department may continue to be liable for paying the individual’s full salary and benefits if the H-1B support is not withdrawn.

If the termination is involuntary, the USA employing department must offer to cover the reasonable cost of return transportation to the H-1B’s last place of foreign residence or home country in the event employment is terminated prior to the end date on the H-1B approval notice.  The department must pay this cost if the employee accepts the offer. If the employee refuses the offer, he or she must sign documentation stating their refusal.

If the termination is voluntary (e.g. the employee has accepted employment elsewhere or has decided to resign), there is no penalty to USA as an employer for the early withdrawal of the LCA and H-1B.

Grace Periods and Status
Because H-1B status is employment-based, status and eligibility to remain in the United States upon termination or involuntary separation are limited.

As of January 17, 2017, the Department of Homeland Security’s Final Rule “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” allows for some grace period at the beginning and end of H-1B Employment.

The rule allows the following grace periods:

  • 10-day initial grace period: Given prior to the start of an authorized validity period to allow time to enter the United States and prepare to begin employment (granted by U.S. Customs and Border Protection at the Port of Entry).
  • 10-day end grace period: Granted after the end of an authorized validity period, which provides time to depart the United States or take action to extend, change, or otherwise maintain lawful status (granted either by U.S. Customs and Border Protection or by US Citizenship and Immigration Services on the I-94 record).
  • Up to 60-day grace period for early termination: In an instance of early termination (prior to the H-1B authorization end-date), the rule allows for a grace period of up to 60 consecutive days of the remaining period of H-1B sponsorship to pursue new employment and sponsorship.  If there are less than 60 days remaining on the H-1B authorization at the time of termination, the H-1B employee is granted only a grace period equal to the remaining days allowed on the H-1B authorization.