H-1B Training Presentation

International Center
H-1B Process Workshop
May 28, 2014
UCI International Center Mission
The International Center promotes and
facilitates international education by
providing services to advance the
university's mission and support the
academic goals and objectives of
international students, faculty, and
The International Center Staff is
committed to providing quality services to
comply with government regulations and
promote intercultural understanding.
UCI International Population
Researchers, Faculty & Staff: 1277
J-1 Scholars:
H-1b Scholars:
International Center Services
Visa Document issuance for students
and scholars
SEVIS compliance
Immigration advising for students &
Consultation services for
International Student/Scholar
Certificate of Registration Process
Who is Eligible for H-1B Status?
A nonimmigrant who holds a
bachelor’s degree or higher, in the
field required by the position
Must not be subject to any bar to
obtaining H-1B status, such as 2year home residence requirement
H-1B: UCI Policy
Full-time (100%) teaching and/or
research appointments for a minimum of
one year
The position is in direct support of an
academic unit
The position is a tenure track faculty
The J visa is the visa of choice for
Postgraduate Researcher/Postdoctoral
Scholar appointments
Please contact the IC to determine
H-1B: Policy Exceptions
The five-year eligibility for the J-1 visa has
been exhausted
The current immigration status (already in
H-1B or permanent residency pending)
makes H-1B the only option
“Bypassing J-1 Visa Process” for an
academic position that does not meet
UCI’s criteria for H-1B sponsorship
(subject to fee)
What is the H-1B?
A nonimmigrant visa status that
allows a nonimmigrant to work
temporarily for a specific employer in
a “specialty occupation”
A “specialty occupation” is one that
requires a specialized body of
knowledge and requires a bachelor’s
degree to enter the profession
H-1B: General Information
Employer specific; the petition is position, duty and location
6-year maximum (issued no longer than 3 years at a time)
Unlike the F and J immigration categories, there is no
automatic "grace period" for aliens in H status after their
period of authorized stay ends, or after their employment
Although aliens in H status may be admitted to the United
States up to 10 days before the petition validity period and
up to 10 days after the petition validity period, granting the
10-day post-petition period is entirely discretionary. The
period of 10 days after the petition is not automatic, and
only exists if the immigration inspector has recorded it on
Form I-94. The alien may not be employed during either of
these 10-day periods.
Regardless of whether the 10 days has been added by the
immigration inspector on the alien's Form I-94, the alien is
expected to either apply for an extension of stay or to leave
the United States on or prior to the I-94 expiration date.
H-1B: General Information
Employees must be paid “prevailing wage” or “actual wage”;
whichever is higher
The actual wage is the "wage rate paid by the employer to all
other individuals with experience and qualifications similar to
those of the H-1B nonimmigrant, for the specific employment in
question." The "actual wage" for LCA purposes is not an average
of the wage rates an employer pays to all workers employed in
the occupation, but rather a listing of wages paid, usually tending
to form a wage range.
The prevailing wage is the average rate of wages paid to workers
similarly employed in the geographic area of intended
employment. Our geographic area, for instance, is the Santa
Ana-Anaheim-Irvine area.
Dept. must attest that it has met DOL workplace and hiring
Failure to meet conditions in LCA may subject UCI to various
If the employer dismisses the H-1B worker prior to the end of the period
of authorized employment, the employer must pay the reasonable costs of
return transportation to the alien's last place of foreign residence.
Dismissal for any reason, even for cause, triggers this provision.
“No Benching” Policy
The No-Benching Requirement and
its Exceptions
An employer is responsible for paying the required wage to
the H-1B employee at all times during the LCA validity
period and as specified on the LCA and Form I-129. Even if
an employee is "benched," i.e., placed in a non-productive
status for reasons such as training, lack of license, lack of
assigned work, or any other job-related reason, the
employer must still pay the employee the required wage.
Furthermore, if the LCA carries a designation of full-time
employment, the employer must continue to pay the full
amount listed on the LCA even if the employee works less
than full time.
The University of California system (10 campuses) decided
to make the H-1B employees exempt from the furloughs
that were introduced several years ago precisely because of
the "benching" concern.
Change in Duties or Terms and
Conditions of Employment
When there is a change in the duties or terms and conditions of
employment of an H-1B worker, an amended I-129 petition may
be needed.
Minor changes in the conditions of employment do not require the
filing of an amended petition; the employer may notify the USCIS
of such minor changes when filing to extend the H-1B worker's
Minor changes would include a change of the employer's name, a
change of job title with no or minimal changes in job duties, a
salary increase (unless it is so substantial that a material change
in job duties may be assumed by the USCIS)
An amended I-129 petition should definitely be submitted in the
following situations:
• The H-1B worker's job duties change significantly (e.g. from
postdoctoral research to college teaching or from medical
research to clinical care)
• When a new LCA is required
Occasional Speeches and Lectures
and Reimbursement of Expenses
The H-1B category allows employment incident to status
only with an employer who has had an H-1B petition
approved by USCIS on behalf of the beneficiary. Although
H-1B nonimmigrants may have the opportunity to make
occasional speeches and lectures at other institutions or at
conferences, they may not receive compensation for these
Although there is no formal written policy or regulation
addressing this issue, these activities are not precluded if
they are incidental to the alien's employment as an H-1B
and, provided further, that the alien is not paid a wage or
salary for his or her services and does not derive a
monetary or other material gain from those activities. H-1B
workers may be reimbursed for "transportation and
reasonable, incidental living expenses" incurred in
connection with travel to other institutions or conferences.
The H-1B Cap
There is an annual fiscal-year limit of 65,000 on the number of
new H-1B "slots" available. There are an additional 20,000 “slots”
under the advanced degree exemption for a beneficiary who has
obtained a U.S. master’s degree or higher. This number is
commonly referred to as the H-1B Cap. When the available H-1B
numbers have been used for the federal fiscal year, which begins
October 1 and ends September 30, the cap is considered reached,
and no new cap-subject petitions can be approved until the next
fiscal year. If an H-1B petition is revoked because of fraud or
willful misrepresentation of a material fact, then that H-1B visa
number will be restored to the supply of H-1B numbers available
in the fiscal year in which the petition is revoked.
An alien is exempt from the H-1B cap if he or she is "employed
(or has received an offer of employment) at" one of the following
"qualifying institutions":
• Institutions of higher education
• Nonprofit entities related to or affiliated with an institution of
higher education
• Nonprofit or Governmental research organizations
H-1B: Departmental
Collect required documents
Collect required signatures for forms
Order checks from accounting
Post notice upon request from IC
Submit completed packet to IC in timely
Notify IC of any changes to appt.
Notify IC if/when scholar leaves UCI, is
granted PR or other change in status
How Do I Begin the H-1B Process
Once eligibility is determined by IC:
 Visit www.ic.uci.edu to access the H1B documents – always refer to
website for current forms/criteria
 Follow the hiring dept. guidelines and
checklist for dept and prospective
 Contact the IC for questions/review
Navigating the IC Website
Visit www.ic.uci.edu to access the H1B documents, starting here:
“UCI Departments”
“H-1B/TN Scholars”
“H-1B Process, Forms & Handouts”;
“H-1B Training Presentation”
Quick Overview of H-1B Process
Before a nonimmigrant may be admitted to work in H-1B status in
the United States, these steps must be followed:
The employer completes Form ETA 9035 Labor Condition
Application (LCA), after complying with relevant Department of
Labor (DOL) regulations.
The employer files Form ETA 9035 with the DOL.
DOL reviews the LCA for completeness, certifies it, and returns it
to the employer – this process takes 7 days
The employer submits an H-1B petition (Form I-129, the DOLcertified LCA, and supporting documents) to USCIS; Form I-129
contains both the employer's petition and a request for action to
be taken on the alien beneficiary's status.
USCIS approves the employer's H-1B petition and the action being
requested on behalf of the alien (i.e., changing the alien's status
to H-1B, extending or amending the alien's H-1B status, or
notifying the Department of State of the I-129 approval so the
alien can apply for an H-1B visa at a U.S. consulate (unless visaexempt) and enter the United States in H-1B status).
Prevailing Wage Determination
Request Process
*DOL encourages requestors to submit their ETA Forms
9141 at least 60 days before the PWD is needed.
Current processing time for a determination is 60+ DAYS,
although this time-line is subject to change.
(It may be possible in some cases to request a re-determination
from DOL for egregious or incorrect determinations. However,
please note that this additional request can add several weeks to
the process.)
IC suggests that departments initiate H-1B requests six months in
advance of the prospective start date if possible, and requires at
least 60 days to prepare H-1B petitions for submission to the
Please ensure Form A, UCI Dept Request for H-1B Petition
Form, is completed by the employee and not the dept., and
scan to me for eligibility, before proceeding with the
additional H-1B paperwork;
Please submit the job ad that was posted for the position,
along with the 9141 prevailing wage request form;
Please provide an educational credentials equivalency
evaluation, (an analytical report which determines the
equivalency in the US educational system of a candidate's
foreign academic and professional credentials); (i.e.,
Trustforte Corp)
Please provide degree transcripts if available
Procedures for H-1B
Visa Application
Four Types of H-1B Applications &
Processing Times
Consular processing: 6 months prior to
departure from home country
Change of status (inside the US): 6
months prior to appt start date
Extension of status (inside the US): 3 - 6
months prior to expiration of current H-1B
Change of employer/Transfer (inside the
US): 3+ months prior to begin date
*Premium Processing reduces processing
Employment Limitations
Can only work for petitioner
Can only accept payment from
May not begin employment with UCI
until H-1B approval received (unless
currently holds a valid visa status
that permits employment)
240-Day Rule: Eligibility to Continue
Employment While Extension is Pending
An H-1B alien for whom the employer has
filed a timely application for an extension
of H-1B stay can continue employment for
the same employer while the request for
extension of stay is pending with USCIS,
for a period of up to 240 days beyond the
expiration of the prior period of authorized
Changing H-1B Employers
Once an H-1B worker is in the U.S., he or she may decide
to change employers. This is sometimes referred to as a
"transfer" or "sequential employment."
The procedure for a change of employer is identical to that
undertaken by the original petitioner. A new prevailing
wage, certified LCA and approved I-129 petition for new
employment (checked at Part 2, item 2(a)) and extension
of stay (checked at Part 2, item 4 (c)) must be obtained
before the H-1B worker begins working for the new
Evidence of prior H-1B status must be included in the I-129
petition, and USCIS may want to see evidence such as W-2
forms, paycheck stubs, or wage and earnings statements,
showing that the H-1B worker was in fact employed by the
prior petitioner and otherwise maintaining status.
Resigning Prior to Change of
The H-1B category is not set up to accommodate
the "real-world" practice of changing
employment. The validity of an H-1B worker's
nonimmigrant status depends upon engaging in
the employment described in the employer's H1B petition.
There is no real "grace period" recognized in H1B status, apart from inferring one from the "up
to 10 days after the validity period ends".
Because of this, an H-1B worker who resigns his
or her position prior to the new employer's filing
a new I-129 petition might be seen by USCIS as
being in violation of his or her H-1B status, and
therefore ineligible for an extension of stay.
Portability of H-1B Status
Nonimmigrants currently in H-1B status with one employer can
begin employment with a new employer as soon as the new
employer files a non frivolous I-129 petition for new H-1B
employment, under the law's H-1B "portability" provisions.
The new employer and beneficiary do not have to wait for the new
petition to be approved for the new employment to begin. If the
new petition is denied, however, "portability" work authorization is
automatically terminated.
To qualify for H-1B "portability" employment, the nonimmigrant
• Have been previously issued an H-1B visa or otherwise
provided H-1B nonimmigrant status;
• Have been lawfully admitted into the United States as a
• Not have engaged in employment without authorization since
that admission; and
• Be the beneficiary of a non frivolous I-129 petition for new H1B employment filed with USCIS before the expiration of the
"period of stay authorized by the Attorney General."
Continued Validity of H Visas After
Employer Change
The current DHS and DOS policy is that an H-1B
nonimmigrant visa remains valid during its
validity period regardless of a change in the
beneficiary's employer. As long as the alien
remains in H-1B classification, the visa is
considered to be valid up until the date of its
expiration. An H-1B nonimmigrant who follows
USCIS procedures to change employers in the
United States may use the previously issued visa
to apply for readmission to the United States if it
is still valid. The H-1B worker should present the
H-1B approval notice for the new (current) H-1B
employment upon reentry.
Travel Under the H-1B Portability
Be otherwise admissible.
Unless exempt, be in possession of a valid, unexpired
passport and H-1B visa.
Document that he or she was previously admitted as an
H-1B or otherwise accorded H-1B status, with a copy of
the previous Form I-94 or I-797 approval notice showing
the petition validity dates.
Document that a new H-1B petition was filed on his or
her behalf, before the expiration of his or her prior period
of H-1B stay. This can be done by showing the I-797
receipt notice, in combination with the documentation
shown in item 3. If the applicant does not have Form I797, and a query of CLAIMS shows no evidence that a
new petition has been filed, the applicant will not be
What Are the Fees Associated
With the H-1B?
Form I-129, $325.00, employer expense
Fraud Prevention & Detection Fee (if applicable),
$500.00, employer expense
Form I-539 (if applicable), $290.00, employee or
employer expense
Form I-907 (optional), $1225.00, employer
Exception “bypass J-1” Fee (if applicable),
$1200.00 recharge to the dept.
Recharge to dept for H-1B Processing Services,
Recharge to dept for TN Processing Services,
Dependent Family Members
(H-4 Status)
Inside US, may apply for extension or change of status (on
Form I-539)
Outside US, no I-539 required; can apply for H-4 visa at
Consulate, together with H-1B or on own with H-1B
documentation and proof of familial relationship
H-4 nonimmigrants cannot be employed in the United
States. If an H-4 dependent qualifies for specialty
employment in his or her own right, a change of status to
H-1B is necessary before such employment may be
H-4 dependents may study in the U.S., full- or part-time,
but the duration of their stay is dependent on the H-1B's
period of stay. Dependents should weigh the benefits of
changing their status to F-1 versus remaining in H-4 status.
H-4 dependents are not subject to the F-1 requirement to
pursue a full course of study, but they are not eligible for F1 benefits such as on-campus employment and practical
H-1B Travel Requirements
Contact IC for review of travel documents,
discussion of visa process, or travel risks
 Complete IC TRAVEL FORMhttp://www.ic.uci.edu/Forms/TravelForm1
 Contact Consulate for appointment
 After return, provide good quality copy of
electronic Form I-94 and visa stamp to IC
*Timing uncertain in visa issuance,
depending on post and security clearance*
Dual Intent in the H-1B Category
Most nonimmigrant classifications require aliens
to prove they have a residence abroad that they
do not intend to abandon, and that they do not
have the intention to immigrate permanently to
the United States. That being the case, taking
steps towards U.S. permanent residence will, in
most cases, jeopardize an alien's chances of
acquiring a nonimmigrant visa or nonimmigrant
The H-1B category, however, benefits from the
doctrine of "dual intent." Dual intent allows a
nonimmigrant to obtain or continue in a
particular nonimmigrant status even though
steps may have been taken towards obtaining
U.S. permanent residence.
The Role of the U.S. Consulate in
the Nonimmigrant Visa Process
U.S. consular offices are part of the Department of State,
and are under the direct supervision of the U.S. embassy in
their respective country. The visa section of a U.S. consular
office is staffed by career Foreign Service Officers. The
principal role of a consular officer in the nonimmigrant visa
issuance process is to decide if the applicant is eligible for a
The consular officer has discretion to require whatever
evidence he or she feels is necessary to demonstrate an
applicant's eligibility for a nonimmigrant visa. Consular
officers operate under guidelines furnished by the Visa
Office of the Department of State, but they retain
discretionary authority to determine the facts of a given
case. If a consular officer has reason to believe that a visa
applicant is not a bona fide nonimmigrant, the visa
application may be denied.
DOS Visa Wait Times
Security Advisory Opinions (SAOs)
See NAFSA hand-out
Security related checks & clearances
Have created significant delays
Technology Alert List, Critical Fields of
Once requested, a University has little
influence and nothing can be done to
expedite the processing of a SAO
Scholars should factor possible delays into
their travel arrangements if applying for a
H1B Travel Restrictions
Travel outside US not permitted
during the change of status process;
viewed as abandonment
Travel outside US allowed while an
extension pending, but must be
present in US at time of filing
Must have valid H-1B approval notice
to travel abroad, employment
verification letter, valid passport and
valid H-1B visa stamp
Automatic revalidation of visas
Generally, an alien must present a valid, unexpired visa in the category for
which application for admission is being made, each time he or she enters
the United States (unless exempt from the visa requirement , such as a
Canadian citizen). If an alien's nonimmigrant visa expires while he or she
is in the United States, or if an alien changes his or her nonimmigrant
status in the United States, the next time they travel abroad they must
obtain a new visa in the proper category in order to be readmitted to the
United States.
An exception to this rule exists for nonimmigrants who travel for less than
30 days solely to Canada or Mexico, (or, in the case of F, J, and Q-2
nonimmigrants only, to Canada, Mexico or "adjacent islands other than
Cuba“). The visas of such aliens are considered to be "extended" to the
date of re-entry, eliminating the need to obtain a new visa at a U.S.
consulate before that particular reentry. This benefit also applies to
nonimmigrants who have changed nonimmigrant status in the United
States, whose visa is still in the category in which they had entered the
United States. In that case, the visa is considered "converted" to the
proper visa category as well as "extended" to allow re-entry.
To determine eligibility for automatic visa revalidation, and travel
instruction, scholars are encouraged to set up an appt at the IC.
17-Month OPT Extension
E l i g i b i l i t y Re q u i r e me n t s
1. Your CIP code (Classification of Instructional Programs) which is the accepted federal
government statistical standard on instructional program classifications* will verify if
your major qualifies for the 17 month OPT extension. This code is displayed on the third
page of your I-20 as of Spring 2008.
2. Students currently on OPT who hold a STEM degree (Science, Technology,
Engineering, Mathematics) are eligible to apply for a 17month OPT extension for a total
of 29 months.
3. Additional requirements:
The student’s employer must be registered in the government sponsored E-Verify
The employer agrees to report to the Designated School Official (IC) any student’s
change of name or address and interruption of employment
The student must agree to periodically report to the IC
Student must be in the 12 month period of OPT
Employment must be directly related to the student’s major area of study
Successful completion of a bachelor’s master’s or doctoral degree on the DHS
STEM list
Has not received a 17 month OPT extension after earning a STEM degree
The OPT 17-month extension is another option for departments to consider, before
requesting a change from F-1 to J-1 or H-1B.
TN Requirements & Process
Brief Overview
TN (Trade NAFTA)
To facilitate entry of Canadian and
Mexican citizens to US to engage in
professional business activities on a
temporary basis
Minimum of Bachelor’s degree required
Profession/occupation specified in NAFTA
treaty (Appendix)
Issued in increments of up to 3 years at a
time for Canadian nationals and up to 1
year at a time for Mexican nationals
O-1 Requirements and Process
Brief Overview
The O nonimmigrant visa provides
admission to persons with extraordinary
ability in the arts, sciences, education,
business or athletics, which has been
demonstrated by sustained national or
international acclaim
Filed by UCI only when no other visa
option exists; by exception only
Labor intensive application process,
currently outsourced to immigration
Permanent Residence
An immigrant is a foreign national who
has been authorized to live and work
permanently in the US
Several categories for granting permanent
residence based on employment skills:
outstanding professor/researcher
(requires 3 years experience in field);
permanent labor certification (filed
within 18 months of job offer letter)
UCI Permanent Residence
UCI entered into agreement with Seyfarth, Shaw
For Regular Rank Faculty, Academic Affairs will
cost-share with school
“Sponsorship Authorization Request Form,
Regular Rank Faculty”, AP-85, (AP websites)
“Sponsorship Authorization Request Form,
Academic Appointees (Other Than Regular Rank
Faculty)” AP-86, (AP websites)
Instructions for Processing Permanent Residence
Essential Features of the LPR
Options Available
EB-1 Extraordinary Ability
• Individual who is one of that small percentage who have risen
to the very top of the field of endeavor, as shown by sustained
national or international acclaim and recognized achievements;
individual can self petition. Alien must prove, however, that
he or she will continue to work in the area of expertise.
EB-1Outstanding Professor or Researcher
• Professor or researcher who is recognized internationally as
outstanding in the academic field, and who has at least 3
years of teaching or research experience in the field. Must
have offer of a tenured or tenure-track teaching or permanent
research position.
EB-2Advanced degree holder
• An individual holding a degree above a bachelor's degree,
which is required for the job offered. Must have offer of a
permanent full-time position which requires an advanced
degree or equivalent. Standard labor certification required;
special handling procedures available to college teachers.
• With National Interest Waiver...No job offer or labor
certification is required if it is established that an
exemption from those requirements would be in the national
Acquiring Lawful Permanent
After an I-140 has been approved in an
employment-based preference category, the
remainder of the lawful permanent residence
(LPR) process is the same for all aliens. An alien
has two processing choices:
• Individuals who choose to acquire lawful permanent
residence inside the United States apply for adjustment
of status , by filing Form I-485, Application to Register
Permanent Residence or Adjust Status; or
• An alternative to an application for Adjustment of Status
is immigrant visa processing at a U.S. consular office in
the individual's home country. Like adjustment of status,
consular processing of an immigrant visa is a personal
application by the alien, not an institutional or employer
Important Reminders
New , Change of status (COS) and Extension of Status (EOS)
cases are taking a minimum of 2+ months for processing at CA
Service Center (without premium processing)
Please submit all cases at least 5 months in advance of
anticipated UCI start date (remember: we can start 6 months in
Please use most up to date forms by visiting the website for the
current H-1B documents and instructions
Please notify IC immediately of any changes to terms or
conditions of appt. to determine if an amended petition is required
Please advise all H-1B scholars to check with the IC prior to any
international travel
Please advise all H-1B scholars to check with the IC prior to
departing UCI to take another position, and/or to return home
Please advise all H-1B scholars to check with the IC regarding any
change in their status
Scholar Check-In Procedures
Once a scholar has checked in with the
International Center and completed the
form below, status is verified and scholar
will be given Certificate of Registration to
present to dept so employment paperwork
can be processed.
International Student/Scholar
Certificate of Registration
This form certifies that the student/scholar has registered
(checked-in) at the UCI International Center. His/Her
immigration status has been verified. Employment
paperwork can now be processed by the hiring department.
S/He is now able to apply for a Social Security Number (if
applicable). For F1 only: If student intends to apply for a SSN,
hiring department must complete the Social Security Verification
Form and obtain a signature from the International Center.
Name of Student/Scholar (Last, First);
Visa Type(F1, J1, H1B, TN, or other);
Registration Verified By: (name of IC staff member);
Today’s Date (MM/DD/YYYY);
Important Information on the IC
All formshttp://www.ic.uci.edu/index.php
Sign up for the dept. listserv:
IC staff contact information: