Transition to H-1B Status
Presentation with OIS
February 17, 2011
International Employment
Employment Services
Human Resources
Administrative Services II, Suite 110
2711 Sullivan Drive, CB 7210
Raleigh, NC 27695
Jill M. Guzman, IE Manager: 515-4518, jill_guzman@ncsu.edu
Pennie Graham, IE Specialist: 513-0200, pennie_graham@ncsu.edu
http://www.fis.ncsu.edu/hr/intemployment/
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Specialty Occupation: H-1B
• For “specialty occupation” positions:
– Professional position requiring at least a bachelor’s
degree or equivalent in related field
• “3 for 1” experience equivalency rule: 3 years of relevant
experience can equal 1 year towards a college degree
• N.C. Office of State Personnel (OSP) position requirements
are binding regarding minimum requirements in this state
– Degree must be related to the position
– 6 year maximum limit (with certain exceptions related
to the permanent residence process), BUT can only
be requested in 3 year (or less) increments
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Specialty Occupation: H-1B
• Employer, location and occupation specific
– CANNOT work for another employer at the same time unless
you also have an H-1B petition approved for that employer, and
both positions cannot be full-time
– CANNOT move to another physical location without filing an
amended H petition with USCIS or posting the LCA notice first
– CANNOT change jobs without filing an amended H petition
– CANNOT go from part-time to full-time, etc. without filing an
amended H petition
– The Regulation: If there is any “material change” in the terms
and conditions of employment (salary, duties, title), employer is
required to file an amended petition with USCIS
• No “benching” – employer can’t stop paying employee
for lack of work, and is obligated to pay wage as
indicated on LCA
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Specialty Occupation: H-1B
• Labor Condition Application (LCA): application that must
be certified by U.S. Dept. of Labor (DOL) before H-1B
petition can be filed with USCIS
– Employer must complete an online LCA form on the DOL
website, and must wait up to 7 business days for a response
• H-1B petition cannot be prepared and filed in a day!
– Employer must pay 100% of either:
• Prevailing wage for position, as determined by the DOL for the occupation
and location, or
• Position’s actual wage (wage being offered by employer),
• Whichever is HIGHER
• Unless employer can find an alternate wage survey that DOL will accept
– Employer makes 4 attestations on LCA
– Employer must post LCA in a location visible to all employees
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Specialty Occupation: H-1B
• H-1B “cap” for industry
– Limit of 65,000 new H ‘visas’ per government fiscal year, from
October 1 – September 30 every year
• FY 2012 begins on Oct. 1, 2011 and ends Sept. 30, 2012
– 20,000 extra new H visas for U.S. advanced degree holders
– TOTAL is 85,000
• BUT 6,800 H-1B visas are set aside for H-1B1 nationals of
Chile and Singapore, leaving a real total of 78,200 new H
visas available for people from all other countries
– As soon as at least 78,200 new H-1B petitions are received,
USCIS stops accepting H-1B petitions and the “cap” is reached
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Specialty Occupation: H-1B
• H-1B “cap” for industry
– Employer can file H petition up to 6 months in
advance of start date (initial or extension)
– So, for an October 1 start date, when the new 78,200
H visas will be available, employer can file the
petition on April 1 (6 months in advance of start date)
– The “H cap” can be reached any time after April 1,
meaning that all 78,200 visas can be gone before
October 1 even arrives (Jan. 27, 2011 for FY 2011)
– Universities and nonprofits are exempt from cap limit
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Specialty Occupation: H-1B
• CIS Filing fees:
– $325 to file I-129 (nonimmigrant) form: DOL says employer must
pay this fee, but USCIS is silent
– $1,500 education and training fee – must be paid be employer,
not required at all if the employer is an educational institution or
a not-for-profit entity
– $500 anti-fraud fee – must be paid by employer for all initial H
petitions filed by that employer
– $1,225 optional premium processing fee: USCIS adjudicates the
case within 15 calendar days – can be paid by employer or you
• Regular USCIS processing currently takes approximately 2-5
months; is always subject to change and never exact
• H-1B worker must meet all requirements at time the petition is filed
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Specialty Occupation: H-1B
• If H worker is terminated before the end of the H validity period,
employer must offer “reasonable costs of return transportation
abroad”
– No additional definition, but employer is not required to pay for family
members or to ship possessions back overseas (but it can choose to)
– Worker is not required to leave, but should not stay illegally
• There is NO official grace period to leave U.S. or change status after
H-1B petition expires or worker is terminated!
– No 60 days, like with F-1 status, or 30 days with J-1 status
– If H worker is terminated and stops working, she/he will start to violate
status immediately, even if H petition is valid for longer
• H rules require that the person be working and receiving payment in
order to maintain valid H status. If either of those two things stop,
person is violating status, regardless of date on H approval notice
• Severance pay does not continue H status, because the person is
not working while collecting severance payments
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Specialty Occupation: H-1B
• Spouses and children in H-4 dependant status cannot
work – NO services for money or other compensation!
– Once child turns 21, can no longer be in H-4 status
– H-4 dependants cannot get Social Security numbers
– Parents (or other relatives) are NOT eligible for H-4 status, even
if they are dependent upon the H-1B worker for support
– If H-4 dependants are in the U.S. at the time the employer
applies for an H-1B for the worker, the dependants must file an
I-539 application to change/extend status with USCIS (some
employers will assist and even pay for this process)
– If dependants and H-1B worker are outside of the U.S. at the
time the employer files the H petition with USCIS, after its
approval dependants can apply for the H-4 visa at the U.S.
embassy or consulate abroad, and no I-539 form is required
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Specialty Occupation: H-1B
• Drivers License: will expire when H-1B and H-4 status
expires
– Will need new approval notice to get new license; a receipt
notice proving the extension was filed will not be enough
• As long as H extension petition is filed before the
current H status expires, worker can legally continue the
employment for another 240 days
– Travel could be a problem if old H approval notice has expired
and new H approval notice hasn’t been issued yet
• Need new approval notice to get a new H-1B entry visa
• Might need to use Premium Processing if travel can’t be avoided
around the time the H petition is expiring
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Specialty Occupation: H-1B
• Travel
– Once in H-1B status, worker will need a valid H visa
(in most situations) to re-enter the U.S. in lawful H
status after travel abroad
– If a change of status from F or J to H-1B has been
filed with USCIS and person travels, the H change of
status petition will be abandoned and denied, and
person will be required to go abroad to get H visa
before being allowed to obtain H status when reentering the U.S.
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Specialty Occupation: H-1B
• Changes of Status to H-1B
– J-1: if foreign national was previously in J-1 status, she or he may be
subject to a two-year home residency requirement before she or he can
change status to H-1B worker
• USCIS checks with Dept of State (DOS), and will NOT approve an H petition
in this situation unless a waiver was obtained
• You should already know if this applies to you!
– J-1 and F-1: if the foreign national is in either status, she or he can
continue to work in that status until it expires, depending upon the
requested start date for the H-1B status in the petition
• Can only be in ONE nonimmigrant status at a time, not two
• Prior status will be automatically terminated upon approval of new status
– There may be a gap in employment if the J-1 or F-1 status expires
before the H petition is approved
• But check to see if Cap Gap extension applies to your situation!
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Specialty Occupation: H-1B
• What you will need to provide for H petition:
– Copy of your CV (make sure it is up-to-date!)
– Copy of your immigration documents (I-20s, DS-2019s, I-94
cards, other approval notices, employment cards, copies of all
prior visas, passport ID page, J-1 waiver documents, etc.)
– Copy of education credentials
• If in a foreign language, must obtain a certified English
translation (YOU cannot do it, USCIS will not accept it!)
• If degree is foreign, must be evaluated for U.S. equivalency
by a professional credential evaluation service
– If in H status already, must provide new employer with copies of
most recent paystubs
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Additional Resources
• International Employment in HR
– IE office can ONLY answer specific questions if they relate
to NC State University as the H-1B employer
• New H-1B Employer
– If you have specific questions about H-1B status with a
different employer (not NC State University), then you need
to ask THAT EMPLOYER your questions
• http://www.ncsu.edu/human_resources/intemployment/h1bdefini
tions.php
• http://www.uscis.gov
Questions?
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