H-1B Employment StatusTRAINING

Tulane Office of International Students and Scholars

What is H-1B status?The H-1B is a type of status/visa issued to a

foreign national which permits them to work in the U.S. as a temporary worker in specialty occupation.

It allows qualified individuals in the United States to perform professional services for a sponsoring employer in a specific position for a fixed period of time.

The H-1B is arranged by the employer, not the employee.

H-1B Characteristics H-1B status can ONLY be granted by U.S. Customs

and Immigration Services (USCIS). Their decision is based upon the petition and specific supporting documents, which are prepared and submitted by the employer.

Unlike other visa types, an H-1B petition is approved for a specific employer, for a specific position, with the foreign national as a beneficiary

H-1B status can be approved for up to three years at a time. Extensions are possible, for a maximum cumulative stay of six years. Regulations exist to permit extensions beyond the six-year limit in certain special cases. OISS recommends filing for a full three years in most circumstances.

Qualifying positions must require, at minimum, a bachelor’s degree. The foreign national must have professional qualifications that meet or exceed the requirements in the job description.

H-1B Characteristics (cont)

U.S. Law requires that H-1B employees be paid as much or more than others with the same qualifications doing the same work.

An employer is legally obliged to ensure that the work a foreign national does matches the description given in the H-1B petition, and must notify USCIS of any substantive change in the work or compensation conditions and in most cases get USCIS approval before implementing changes. If the employee will be given a new title or position, contact OISS well in advance.

H-1B legal status is tied to employment. Once the employment of a foreign national in H-1B status ends, the legal status of the foreign national in the U.S. ends. They must leave the U.S. or file for a change to another status.

When proper paperwork has been filed, a foreign national may work for multiple employers simultaneously while in H-1B status. However, the individual must have valid, approved H-1B petitions for EACH employer.

The Process for an H-1BTulane Department decides to hire a foreign national.

Hiring follows WFMO and Tulane Guidelines and is approved.

Hiring Dept. visits OISS website http://global.tulane.edu/oiss/departments.html

Dept. fully completes forms in Dept. Packet, and sends the employee packet to prospective employee.

Upon receipt of fully completed Dept. Packet OISS can request the prevailing wage determination from U.S. Department of Labor.

OISS reviews completed Employee Packet, begins to draft form I-129, the formal H-1B application.

Upon receipt of the DOL prevailing wage determination, OISS requests Actual Wage Determination (AWD) from WFMO.

Upon receipt of AWD, OISS requests Labor Condition App. from Office of General Counsel

WFMO conducts actual wage analysis. If salary does not meet requirement, WFMO notifies Dept. that the salary must be raised to meet the wage threshold. When agreed, AWD sent to OISS.

H-1B Process (continued)USCIS performs initial review of packet and sends RFE if incomplete.

USCIS Sends Receipt Notice to OISS; 240-day rule takes effect for H-1B renewals or change of employer.

USCIS Adjudicates petition. Sends approval notice to OISS, if approved.

OISS receives approval notice from USCIS and informs employee.

Employee comes to OISS and is given new I-94, copy of approval notice and LCA, sent to WFMO.

Employee takes new approval notice to WFMO and completes new I-9 Tax Form.

Upon receipt of LCA, OISS finalizes I-129, assembles packet, sends to USCIS California Service Ctr.

Note: Premium Processing only affects the portion of the process going forward from here.

H-1B Department Paperwork Download the latest “Required Departmental Documents” pdf

directly from: http://global.tulane.edu/oiss/departments.html◦ Prevailing Wage Request form (Doc 1)◦ Actual Wage Worksheet (Doc 2)◦ Employer Attestation (Doc 3)◦ Department Letter of Support (Doc 4)◦ Deemed Export Questionnaire(Doc 5)

Official Job Description (as approved by WFMO) or letter on file with Provost (for Faculty members)

Department’s FedEx account number Fees: $325 application for each case (must be paid by

department), $500 anti-fraud (new employee/new status), $1225 premium processing (optional)

Submit hard copy originals to OISS office.Separate checks for each fee - can be submitted at a later date.

H-1B Employee Packet Download Employee Questionnaire and Required Documents

list from: http://global.tulane.edu/oiss/departments.html Current CV Education Documents

◦ Foreign Credential Evaluation for foreign degrees◦ Diploma(s)◦ Transcript(s) where necessary

Copies of Immigration Documents◦ All pertinent Passports and U.S. Visas◦ I-797; I-20; DS 2019◦ I-94 Card or printout from cbp.gov/i94◦ Other

Accurate accounting of time spent inside the U.S. Accurate accounting of time spent outside of the U.S. while

in H-1B Documents for dependents, including I-539 application and

$290 fee

Prevailing Wage Determination

Accurate & complete job description is essential.

Obtained from a compendium of salary averages by region which is adjusted twice per year.

H-1B salary must meet or exceed BOTH the prevailing wage and the actual wage.

Processed electronically by U.S. Dept. of Labor. (Response takes 2-3 weeks)

Actual Wage Determination

Performed by Tulane Workforce Management.

Requires accurate and complete information about employees doing the same work in the same department.

Incomplete or misleading information will delay processing and could result in penalties and fines from USCIS.

Labor Condition Application (LCA)

Submitted by the Tulane Office of the General Counsel (OGC).

Adjudicated by U.S. Department of Labor.

Sets the employment conditions.Is binding upon Tulane.Can be amended if

employment conditions change.

Premium Processing$1225 extra fee.Typically shortens USCIS

processing to within15 days before adjudication.

Does not alter internal processing speed before application leaves Tulane.

Change of Status H-1BBeneficiary is already in the U.S.

in legal status.Tulane must file complete petition

requesting change of status to H-1B.

Normally, beneficiary may NOT start work until H-1B petition is approved (and start date arrives).

Requested start date is normally the date the current status is set to expire.

Getting an H-1B AbroadTulane files complete petition with a request

for consular processing.Petition is approved by USCIS and

embassy/consulate is notified electronically. Beneficiary schedules a visa interview

appointment at the designated U.S. embassy or consulate and pays fee for new visa stamp.

Consular office decides whether to issue visa stamp.

If approved, H-1B visa stamp is placed in passport and applicant is free to travel to U.S. and begin work during the authorized H-1B dates.

Renewal of H-1B StatusBeneficiary is in the U.S. in H-1B

status, already employed by Tulane.Tulane must file complete petition

requesting renewal of H-1B for current employee.

Normally, beneficiary may continue to work until petition is approved based upon 240-day rule.

Renewal should start no later than the date the current H-1B status expires.

Transfer from another H-1B employer

Tulane must file complete petition requesting change of employer.

If foreign national is still in valid H-1B status, may begin working for Tulane after petition has been filed with USCIS “in a timely manner” (typically 6-8 weeks after process is initiated with OISS).

May continue working for up to 240 days while petition is adjudicated by USCIS. (240-day rule).

Recapture & Extension Beyond 6th Year

Recapture: beneficiary should submit evidence of days spent outside of the U.S. during entire period of H-1B validity.

Extension beyond 6th year: Beneficiary has initiated their permanent residence process, and has submitted an I-140 before the end of their 5th year in H-1B status. May be eligible to file for subsequent extensions until the Green Card is approved.

Navigating the OISS Website

Kate HammonsProgram Manager, H-1B and TN Office of International Students &

Scholars6901 Willow StNew Orleans, LA 70118

504-865-5208 (telephone)504-865-5209 (fax)khammons@tulane.edu http://global.tulane.edu/oiss/

departments.html Inquire about Downtown office hours -

Wednesday afternoons in Tidewater 2460