HIRING H-1B NONIMMIGRANT

EMPLOYEESAT TEMPLE UNIVERSITY

ISSS Contact Information

• PHONE: 215-204-7708• FAX: 215-204-6166• www.temple.edu/isss • Staff Information:

– Martyn J. Miller, Ph.D., Senior Director• mjmiller@temple.edu; 1-4682

– Joan McGinley, Assistant Director• joanw@temple.edu; 1-1272

– Sharon Loughran, Immigration Services Specialist• sharonl@temple.edu, 1-3805

US Government Agencies to Know

• U.S. Department of Homeland Security (DHS): DHS combined 22 different federal departments and agencies into a unified, integrated cabinet agency in 2002 www.dhs.gov/

• US Citizenship and Immigration Service (USCIS): Branch of the U.S. Department of Homeland Security which has authority over all aliens in the United States, including international scholars and employees in J and H-1B visa status www.uscis.gov

• US Department of Labor (DOL): Government Agency that has authority over Labor Condition Application (LCA) needed for H-1B Petition www.dol.gov

• US Customs and Border Protection (CBP): Branch of the U.S. Department of Homeland Security responsible for admitting internationals into the US www.cbp.gov

• US Immigration and Customs Enforcement (ICE): Enforces federal laws governing border control, customs, trade and immigration to promote homeland security and public safety; oversees SEVIS, the software system used for F and J students/scholars https://www.ice.gov/

• US Department of State – Authority over issuances of all US non-immigrant and immigrant visas http://travel.state.gov/content/visas/english.html

www.temple.edu/isss/international/temporary-employees.html

MINIMUM ACADEMIC REQUIREMENT FOR H-1B EMPLOYMENT

A "specialty occupation" for H-1B purposes is an occupation that requires "(A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

Please Note:

• ISSS does not process petitions for part-time faculty positions

• ISSS may take up to 45 days to complete the processing of the materials for this petition so the department should submit a complete application to ISSS no later than two months prior to the requested H-1B start date

• The Premium Processing Fee DOES NOT apply to the LCA, only USCIS processing time

• Submission of a petition to the USCIS does not guarantee approval of the petition

• The hiring unit must notify ISSS at least 30 days in advance of  ANY changes in the H-1B’s employment so that ISSS can determine if notification to the proper government agency is required

Application Process for Employment in H-1B Status

• Please ensure that all required materials are submitted at one time.

• Missing information will cause unnecessary delays in processing of H petitions.

• Please review Estimated Processing Times when choosing a Requested Start Date

• ISSS can request up to 3 years on each H-1B petition. To avoid cost for return transportation, only request dates for which you have funding. The End Date for Faculty and Post Doctoral Fellows must match the appointment/contract letter.

Items Needed

• Required Checks• Controlled Technology Form• TU Appointment / Offer Letter /Contract signed by appropriate TU Official (From HR if HR-Hire)• Copy of Official Job Description (From HR if HR-Hire)• Actual Wage Documentation (From HR if HR-Hire)• Copies of beneficiary’s passport (photo page, US entry stamps, visa stamps, renewal pages only) • Copy of beneficiary’s most recent I-94 if inside the US• Certificate of Authenticity of Attached Documents• Current CV• Copy of any license needed for this position• Copies of 3 most recent paychecks to establish current employment in the US ONLY• English-language translations of all diplomas • English-language transcripts for all diplomas• Academic Credentials Evaluation if Highest Degree Was Earned Outside the US• Copies of all I-20 / DS-2019 Forms and EAD cards • Copies of USCIS Receipt/Approval Notices ( J waiver, I-140, I-485, etc)• Copy of PERM if TU-Sponsored for Green Card•  H-1B Applicant’s ECFMG Certification and USMLE Score Reports, Steps 1, 2 and 3 [clinical employment only]•

H-1B Processing Fees

Departments are required to pay mandatory processing fees associated with H-1B employment:

• US$500.00 “anti-fraud” fee is required for anyone who has not had H work authorization for TU

• US$325.00 processing fee is required for every H-1B Petition

• If expedited processing is required for Business Purposes, Dept must pay the US$1,225.00 premium processing fee; if expediting is due to personal reasons like travel, H-1B can be asked to pay the premium processing fee.

• $1225 is IN ADDITION TO the $325 regular processing fee.

• Hiring departments may also choose, but are not required, to pay the current $290 fee for applications of dependents of employees in H-1B status.

 

Just a Suggestion:

Departments who routinely file H-1B petitions might wish to consider keeping extra checks ($325, $500 and $1225) on hand in case you need them. Temple checks are valid for 180 days (for Main Campus).

Items Needed for Dependents Already In the US:

• Check for $290 [payable to USCIS] regardless of # of dependents    

• Original Form I-539 Signed In Blue Ink (completed and signed by dependent, not H-1B)

• Copy of Marriage Certificate / Copy of Birth Certificates for Children  

• Copies of dependents’ immigration documents

Dependents outside the US: All dependents who plan to enter the US in H-4 status must apply for an  H-4 visa stamp at a US Consulate outside the US.  Do not complete a Form I-539 for Dependents who are not currently holding a non-immigrant status (i.e.H-4, J-2, F-2) in the US.  

Dependents holding H-4 status or another non-immigrant status in US:  All dependents of the applicant who are already in the US and need to extend H-4 status or change status to H4 must complete and sign an I-539

www.temple.edu/isss/international/H-4Dependents.htm

• Department invites H-1B applicant through ISD• Department completes a Controlled Tech Form and emails it to

sharonl@temple.edu; ISSS sends it to University Counsel and awaits decision

• H-1B applicant enters required data and upload required documents into the Visitor site, then submits record to TU Department

• Department adds required information on Appointment, Site of Activity and Funding screens and uploads required documents

• If the H-1B will be hired through Human Resources, then HR Generalist will upload required documents into ISD (Official offer letter, Official Job Description and Actual Wage Documentation)

• Department submits H-1B applicant's record to ISSS via the "Tasks" tab in ISD

• Department mails or drops off necessary checks to ISSS

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• Upon determination that the salary meets US DOL regulations, ISSS begins LCA / DOL Posting Notice process. LCA certification takes a minimum of 7 days.

• Once University Counsel notifies ISSS that no Deemed Export License is required, the LCA has been certified by DOL, and ISSS has a complete application,  ISSS begins processing the I-129 and supporting letter for the H-1B petition. This step of the process may take several business days.

• When process is complete, the H-1B petition is compiled, checks are attached and the petition is submitted to USCIS via UPS. If petition is being premium processed, we expect a response from the USCIS within 15 days of USCIS’ receipt of petition. The response can be an approval notice, a request for further evidence, or an intent to deny the petition.

• When the application process is complete, the H-1B petition is compiled, checks are attached and the petition is submitted to USCIS via UPS. If petition is being premium processed (optional process for an additional $1225 above the required $325 [all petitions] and $500 [initial and transfer petitions only] fees), we expect a response from the USCIS within 15 days of USCIS’ receipt of petition. The response can be an approval notice, a request for further evidence, or an intent to deny the petition.

• The hiring department, Human Resources and the H-1B applicant will be notified via email when ISSS receives the Receipt Notice and Approval Notice from USCIS.

• Given the nature of compiling a petition for H-1B status, ISSS requests a minimum of eight (8) weeks to process a petition.

• If the person you wish to hire is currently abroad and has never held H-1B status, s/he must wait abroad until the H petition is approved. The USCIS will notify the US Consulate closest to that person’s residence of the approval. The potential employee must then apply for an H-1B visa stamp. This could take days, weeks or months, depending on such factors as length of security and criminal checks, wait time at US Consulates, and holidays.

H-1B PortabilityA “transfer H-1B” is someone who already holds H-1B status and is currently working at another institution.

Consistent with the portability of H-1B status, hiring department does not need the petition to be approved before allowing a transferring H-1B employee to begin working. The H-1B is “portable” and may begin working at Temple once we have a Receipt Notice from USCIS and once employment is authorized by HR.

Please note, however, that we still need to wait for a certified LCA from DOL, a Controlled Tech decision and a receipt notice from UCIS, so this process can still take up to six weeks.

WHEN CAN H-1B EMPLOYMENT BEGIN?

H-1B New, Change of Status Petitions – Employment may not begin until ISSS receives the ORIGINAL Approval Notice from USCIS

H-1B Extension Petitions – Employee may continue employment while waiting for approval as long as USCIS receives the H-1B petition before the current TU H-1B expiration date

H-1B Transfer Petition - Employee may begin TU employment upon receipt of “receipt notice” from USCIS

TIME LIMITS ON H-1B STATUS

• An H-1B may be authorized for employment for an initial period of up to 3 years, depending upon the offer/appointment letter.

• Extensions of stay may be requested for up to 3 more years. • The maximum total stay in H-1B status is 6 years. This includes all time in H-1B

status, regardless of the employer.• ISSS can petition for additional years in H-1B status if the H-1B has a Labor

Certification (PERM)/I-140 application pending for at least one year OR if H-1B has an approved I-140 but is from an oversubscribed country and cannot adjust status. It is CRITICAL that the H-1B files a Green Card Application no later than the beginning of her/his 5th year in H-1B status if you wish to employee H-1B past the 6th year maximum.

• Normally USCIS will only issue H-1B employment authorization for the length of a required State License (if applicable).

• USCIS determines the length of time they will grant H-1B work authorization.• No formal grace period for H-1B status; H-1B may not be in the US if not employed.

H-1B Wage-Related Issues• The actual wage is the amount being paid to all other TU employees with similar

experience and qualifications for the specific position at the particular laboratory, center or department.

• The prevailing wage is the rate being paid in the greater Philadelphia area for the same occupation. If employment will take place at more than one site, we must determine the prevailing wage for both locations.

• The H-1B must be paid the higher rate of the prevailing or actual wage.

• DOL’s Administrative Review Board held that an employer must pay the required salary to a terminated worker after the date of termination, until the employer can prove that it notified USCIS of the H-1B’s termination,. Your department must notify our office immediately upon termination of an H-1B. We must then notify USCIS. Your department is required to continue to pay the employee until our office has proof that USCIS has been notified of our intent to withdraw the petition.

• In addition, the hiring department is obligated to pay the reasonable costs of the foreign national’s return trip to his/her home country in the event that the H-1B’s employment is terminated before the expiration of the employment approved by USCIS.

H-1B Wage-Related Issues

• The Department of Labor’s Administrative Review Board holds that an employer must pay the required salary to a terminated worker after the date of termination, until the employer can prove that it notified USCIS of the H-1B’s termination. Your department is required to continue to pay the employee until our office has proof that USCIS has been notified of our intent to withdraw the petition.

• Departments MUST contact ISSS AS SOON AS THEY KNOW that an H-1B position will end, either through voluntary or involuntary means, as ISSS must withdraw the H-1B petition from USCIS.

H-1B Wage-Related Issues

If the employer dismisses the H-1B worker prior to the end of the period of authorized employment, the employer must present a check to the employee equivalent to 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.  INA § 214(c)(5)(A); 8 C.F.R. § 214.2(h)(4)(iii)(E)

The hiring department must email the following items to ISSS as soon as the department notifies the employee of termination:

1. Copy of the check that covers return transportation fees

2. Copy of the research documenting how you arrived at the cost of a one-way return ticket to the employee's home country

3. Signed statement from H-1B employee indicating that s/he received the check from the department

• The employee should depart the US on the final day of TU employment, unless he or she has secured the H-1B sponsorship of another employer or otherwise changed immigration status as there is no grace period for H-1B Temporary Workers.

• If the employment relationship terminates, the H-1B nonimmigrant will "fall out of status" and can be removed from the US. Although USCIS has the authority to accept and approve applications for extension of stay or change of status even in such circumstances, that authority is highly discretionary, and is exercised only on a case-by-case basis.

www.temple.edu/isss/international/end-employment-issues.html