What is H-1B status?
H-1B is an “employment-based” status which allows foreign nationals to come to the U.S., specifically for the purpose of working and being paid in a position that is considered to be a “specialty occupation” (requiring the theoretical and practical application of a body of highly specialized knowledge to perform the occupation.) At UNCW, H-1B sponsorship is reserved for those in full-time, EPA teaching and non-teaching positions.
H-1B employment is site specific according to federal law. Therefore, H-1B professionals may only be employed by the UNCW department that submitted the H-1B petition. No other employment, on or off campus, is permitted without separate approval by the U.S. Citizenship and Immigration Services (USCIS).
H-1B status may be initially granted for a period of up to three years. Extensions may be obtained, but the total period of authorized stay cannot exceed six years, unless the individual has progressed through requisite steps leading toward permanent residency.
Requesting H-1B sponsorship
Before a potential UNCW employee may be granted H-1B status, the university must file an H-1B petition with the U.S. Citizenship and Immigration Services (USCIS). Although the Office of International Programs will complete the government forms necessary for an H-1B petition, it is the responsibility of the hiring department to request an H-1B petition on behalf of a current or prospective employee and to provide the necessary information.
The process begins in the hiring department which is responsible for completing the H-1B Request Form, gathering other necessary materials, and submitting them to the Office of International Programs. The request form must be signed by the department chair and dean. It is important to have a clear understanding of the requirements and liabilities related to an H-1B petition before signing a request form; information concerning these requirements is given below.
Because there are many steps involved in filing an H-1B petition and because USCIS can take months to adjudicate such petitions, departments are urged to submit applications at least 6 months before the requested start of H-1B status.
Steps to File an H-1 B Petition
The hiring department submits to the Office of International Programs:
- H-1B Request Form (pdf)
- Actual Wage Calculation Form (pdf), see Sample Actual Wage Calculation (pdf)
- Prevailing Wage Request Survey
- Copy of offer of employment and/or contract
- Department H-1 B support letter on letterhead with original signature. Letter must include job title, dates of employment (maximum three years), annual salary, job duties and the skills of the employee that led you to hire the employee.
The foreign national submits to the Office of International Programs:
- H-1B Applicant Information Form (pdf)
- Copy of most recent Curriculum Vitae
- Copy of highest level degree/diploma. If the degree has been awarded from a foreign institution, the employee is responsible for obtaining an official credentials evaluation from WES or another reputable company.
- If employee is currently in the U.S. and will not be leaving the U.S. before beginning or continuing UNCW employment, the following items are required:
- Photocopy of both sides of employee’s I-94 card (Arrival/ Departure Record)
- Photocopy of passport pages (pages with photos, biographical data, US visa stamps)
- If employee’s dependents will be applying for or extending H-4 status:
- Copy of dependent’s I-94 and all other immigration items documenting current status
- I-539 form (Completed in the name(s) of dependent(s) only) and associated I-539 fee
- If currently in F-1 status, copies of all I-20 forms and OPT card
- If currently in J-1 status, copies of all DS-2019 forms. If any of these forms indicate the employee was subject to two-year-residency requirement, one of the following is also required:
- Copy of letter from Dept. of State recommending waiver of requirement or stating that employee was never subject to requirement.
- Copy of letter from USCIS granting waiver of two-year requirement.
- If currently in H-1B status, copies of all previous H-1B petition approvals and 3 months of recent pay stubs.
- Copies of any other current USCIS employment authorizations (such as laminated Employment Authorization Document card)
Prevailing Wage Determination from the Department of Labor
- OIP will request a Prevailing Wage Determination from the Department of Labor.
- On average, it takes three months for the prevailing wage determination to be made.
H-1B employee must be paid at least the Actual wage and Prevailing wage
- If the H-1B employee will be paid at least the actual wage and prevailing wage, OIP will file a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL).
- On average, it takes one week for the prevailing wage determination to be made.
Mandatory 10-day posting of the LCA notice
- The hiring department must fulfill the mandatory 10-day posting of the LCA notice and send confirmation that it has done so to OIP.
OIP submits H-1B petition
- Once the hiring department has posted the certified LCA for at least 10 days, OIP will complete the H-1B petition (I-129) and submit it, along with the necessary documents and fees, to USCIS.
- On average, USCIS adjudicates the I-129 petition in 3-6 months. A “premium processing” fee may be paid to expedite the adjudication. This fee guarantees the petition will be adjudicated in two weeks.
After employee is granted H-1B status:
When the employee has been granted H-1B status, employment in H-1 status may begin. If the H-1B employee is abroad, he/she must obtain an H-1B visa stamp at a U.S. embassy or consulate before entering the U.S. Please allow additional time for this process.
Specific requirements for H-1B employment
Before an H-1B petition can be filed, OIP must file a “Labor Condition Application” (LCA) with the U.S. Department of Labor (DOL). In the LCA, the employer must make the following four attestations:
- The H-1B employee will be paid the “Actual Wage” for the place of employment (UNCW) or the “Prevailing Wage” for the geographic area, whichever is greater.
- The employment of an H-1B worker will not “adversely affect” the working conditions of other, similarly employed persons at the place of employment.
- There is no current strike or lockout at the place of employment.
- A notice of the filing of the LCA has been posted in at least two conspicuous locations at the place of employment.
The employer is required to maintain substantial, detailed documentation that these four attestations are true; this documentation must be available for inspection by any interested party. The required documentation will be kept in the Office of International Programs.
Interpreting such terms as “Actual Wage”, “Prevailing Wage”, and “Adversely Affected” has been complicated by various DOL interpretations. The current interpretation is that the employee will be considered to be making the “actual wage” if he/she will receive at least as much as other similarly employed and similarly qualified employees in the same department. If others are not all paid exactly the same amount, the salary of the H-1B worker must be within the range of others. The “prevailing wage” will be the average wages of persons similarly employed in the same geographic area, as determined by the Department of Labor. OIP will work with DOL to obtain this information.
If it’s determined the H-1B employee will not be paid at least the “actual wage” or “prevailing wage”, UNCW will not be able to file an LCA or an H-1B petition, and therefore the person may not be employed in H-1B status.Because the petition, the LCA, and the back-up documentation must give the employee’s position title and salary, it is vitally important that all information provided with the H-1B request be accurate. Submitting inaccurate information on an LCA or H-1B petition can result in severe penalties for the employer. Although a regular salary increase would not violate the H-1B regulations, UNCW may not make any other substantial change in the employee’s duties, dates of employment, title, salary, or location of employment until we have received USCIS approval of a new H-1B petition.
U.S. immigration law also requires the employer to be responsible for the employee’s return travel expenses to his/her home country if employment is terminated before the end of the H-1B authorization. This expense would be the responsibility of the hiring department. For this reason, we suggest that a department request an H-1B petition for only the period of time which funding is reasonably secure. If continued funding is obtained, then the university may request an extension of the H-1B petition.