- What are some reasons a foreign national may not be eligible for H-1B classification?
- Why can’t an F-1 student qualify for the automatic cap-gap extension if they will be an H-1B employee at UH?
- If an F-1 student has OPT STEM extension approval, why might a UH department need to file an H-1B petition rather than use the STEM EAD as proof of work authorization?
- What is a prevailing wage? What is an actual wage? What is the required wage and why is there a wage requirement anyway?
- Why is FSIS taking so long to complete the H-1B petition? It’s already been over a week.
- Can an H-1B employee pay any of the fees for the H-1B petition?
- Can a UH hiring unit seek reimbursement of the H-1B petition fees from the H-1B employee?
- If the H-1B visa in the passport expired or is about to expire, does the person need to leave the U.S. to apply for a new visa at a U.S. embassy or consulate to remain in H-1B status?
- Can the H-1B employee of a different employer (not UH) receive an honorarium or reimbursements from a UH department?
- Can an H-1B employee do volunteer work?
- Can an H-1B employee go on leave without pay?
- Is there an automatic grace period at the end of H-1B status?
- If an H-1B employee seems to have reached the six-year maximum limit, is there any way to extend their lawful status in the U.S. any longer?
- Can an H-4 dependent work in the U.S.?
- Can an H-4 dependent study in the U.S.?
1. What are some reasons a foreign national may not be eligible for H-1B classification?
Reasons may include, but are not limited to:
- The prospective hiring unit cannot pay the person the required wage (i.e. the greater of the prevailing wage and the actual wage);
- The position offered does not require at least a bachelor’s degree as a minimum requirement;
- The person does not have the required degree or its equivalent;
- The person has already been in the U.S. for six years in H-1B status and is not eligible for further H-1B extensions; and/or
- The person is subject to the two-year home country residence requirement stemming from J-1 or J-2 status and has not yet fulfilled the requirement nor obtained a waiver of it.
2. Why can’t an F-1 student qualify for the automatic cap-gap extension if they will be an H-1B employee at UH?
F-1 students are only eligible for an automatic cap-gap extension if their H-1B employer is subject to the H-1B cap. As an institution of higher education, UH is exempt from the cap. Therefore, if the F-1 status end date will occur before UH’s H-1B petition start date, the student must depart the U.S. and be readmitted in H-1B status after the H-1B petition is approved.
3. If an F-1 student has OPT STEM extension approval, why might a UH department need to file an H-1B petition rather than use the STEM EAD as proof of work authorization?
It’s possible the hiring unit does not participate in E-Verify for STEM extensions. There are many UH departments that participate in E-Verify for federal contracts only, which does not necessarily mean an F-1 student with an OPT STEM extension may work for such a department using a STEM EAD. The department should check with the HR specialist for the college/school/unit to determine whether they can hire someone on a STEM extension. If the college/school/unit does not participate in E-Verify, then in most cases, the department will need H-1B or another type of qualifying work authorization to employ the person. See UH Administrative Procedure A9.685 for more details on the E-Verify program.
4. What is a prevailing wage? What is an actual wage? What is the required wage and why is there a wage requirement anyway?
The prevailing wage is the average wage paid to similarly employed workers in a specific occupational classification in the area of intended employment, while the actual wage is the wage rate being paid to all other UH workers who are similarly employed and who have similar experience and qualifications to the prospective H-1B worker. The required wage, which must be paid to the H-1B worker, is the greater of the prevailing wage or the actual wage.
An employer must pay the required wage to an H-1B worker to ensure that the employment of the H-1B worker is not adversely affecting the wages and working conditions of similarly employed U.S. workers. The required wage provisions are therefore in place to protect U.S. workers as well as the H-1B worker.
5. Why is FSIS taking so long to complete the H-1B petition? It’s already been over a week.
Before FSIS can complete an H-1B petition, we have to receive approval of a labor condition application (LCA) from the U.S. Department of Labor (DOL). The DOL can take 7-10 days to certify the application. There is no way to expedite the LCA.
In addition to LCA approval, FSIS must obtain clearance from the UH Export Controls office before we can release a completed petition for filing with the U.S. Citizenship and Immigration Services (USCIS). The Export Controls Officer must discuss potential issues with the H-1B worker’s direct supervisor to recommend clearance. Due to conflicting schedules, this sometimes cannot be done right away.
Another common reason for a delay is that we have not received all of the necessary documentation and/or information from the department.
Finally, we must prioritize our workload based on filing deadlines set by U.S. government agencies. Even if a hiring unit submits an H-1B request to us well in advance of the intended start date, we may need to set the request aside if another unit sends in a request that requires our immediate attention. We strongly urge units to submit their requests as early as possible so as to avoid situations that require last-minute action.
6. Can an H-1B employee pay any of the fees for the H-1B petition?
No. The UH department is required to pay all “costs connected to the performance of H-1B program functions which are required to be performed by the employer, e.g. preparation and filing of the LCA and H-1B petition.” (20 CFR 655.731(c)(9)(ii)). Therefore, as an institutional policy, UH hiring units must pay all H-1B petition-related fees, none of which may be passed on to an H-1B employee.
7. Can a UH hiring unit seek reimbursement of the H-1B petition fees from the H-1B employee?
No. Even if an employee resigns before the end of the contract or is terminated for cause, the department may not demand reimbursement of H-1B petition fees from the employee for any reason.
8. If the H-1B visa in the passport expired or is about to expire, does the person need to leave the U.S. to apply for a new visa at a U.S. embassy or consulate to remain in H-1B status?
No. A visa in an employee’s passport is used solely for admission to the U.S. at a port of entry. The visa has no bearing on H-1B status while the person is in the U.S. As long as the worker has a valid H-1B approval notice and I-94 card and is maintaining status, they can remain in the U.S.
9. Can the H-1B employee of a different employer (not UH) receive an honorarium or reimbursements from a UH department?
It depends on the type of payment. Because H-1B classification is employer-specific, an H-1B worker who does not have an H-1B approval notice from UH may not receive a salary, honorarium, fee, or any other payment that might resemble compensation for services from UH. UH may, however, reimburse the H-1B holder for actual expenses incurred (e.g. airfare, lodging, transportation, etc.).
10. Can an H-1B employee do volunteer work?
Volunteering is allowed as long as the position was advertised as a volunteer position, there will be no compensation and/or benefits (including non-monetary compensation) in exchange for services rendered, and the H-1B employee will not be taking the place of someone who would otherwise be paid.
A prospective employee may not “volunteer” with UH on a trial basis. Likewise, a foreign national who has been offered a UH position but is not yet eligible to start H-1B employment may not “volunteer” at UH in any capacity.
If any of the above requirements are not met, the individual’s activities at UH will be considered unauthorized employment, which can result in penalties being imposed on both UH and the foreign national.
11. Can an H-1B employee go on leave without pay?
Possibly, but it depends on the circumstances.
Even if an H-1B worker is not performing duties, regulations may require that the full wages still be paid during that nonproductive period. (20 CFR 655.731(c)(7)). UH must continue paying full wages if the H-1B worker is not carrying out their duties due to:
- A decision by the employer (e.g. because of lack of assigned work);
- Lack of a permit or license; or
- Any other reason except as specified below.
An H-1B worker can go on LWOP if:
- During the LWOP period, payment of wages is not required under UH’s benefit plan or any statutes (such as the Family and Medical Leave Act or the Americans with Disabilities Act);
- Conditions unrelated to employment are what take the H-1B worker away from their duties; and
- The LWOP period is at the worker’s voluntary request and convenience (e.g. touring the U.S., caring for ill relative) or due to circumstances which render the worker unable to work (e.g. maternity leave, car accident which temporarily incapacitates him/her).
12. Is there an automatic grace period at the end of H-1B status?
No. An H-1B beneficiary must leave the U.S. by the last day of H-1B status or risk accruing unlawful presence.
13. If an H-1B employee seems to have reached the six-year maximum limit, is there any way to extend their lawful status in the U.S. any longer?
H-1B extensions beyond six years may be possible in limited situations.
Alternatively, an H-1B worker who has spent a significant amount of time abroad during the H-1B approval period may be eligible to “recapture” that time abroad by providing proof of physical presence outside the U.S. The UH department should submit an H-1B extension request (including proof of presence) to FSIS. USCIS will not necessarily issue approval for the entire period being requested.
If the person has no other options for remaining in the U.S., such as changing to a different immigration status, they should depart the U.S. or risk accruing unlawful presence.
14. Can an H-4 dependent work in the U.S.?
An H-4 spouse may apply for work authorization if all eligibility requirements are met. Employment may begin after USCIS issues an Employment Authorization Document (EAD).
H-4 children are never eligible to apply for work authorization.