Step 1: UH job offer
UH may file an H-1B petition on behalf of a prospective employee if a job offer from a UH department has been accepted. That is, H-1B sponsorship may be initiated only if an employment agreement exists between a UH department and a foreign national. Once a job offer has been accepted, the department must determine whether the individual is eligible to work in the U.S. If the person does not already have employment authorization for the UH job, proper authorization will need to be secured before employment can begin. The H-1B classification may be an option for work authorization if the initial eligibility requirements are met.
It is important to note that UH does not classify stipend or fellowship recipients (e.g. post-doctoral fellows) as employees. This means UH cannot seek H-1B classification for non-salaried appointments. In such cases, the J-1 classification may be the most appropriate option.
Step 2: Determine H-1B eligibility
UH units may pursue H-1B sponsorship if the following minimum requirements are met:
- The position must be in a full-time “specialty occupation” that requires the theoretical and practical application of a body of highly specialized knowledge and at least a bachelor’s degree or foreign equivalent in the specific field; and
- The prospective employee must have the required educational degree or its equivalent in the specific field, experience, and other requirements for the position. For H-1B purposes, a bachelor’s degree equates to three years of progressively responsible experience for each year of formal education the individual lacks; a master’s degree’s equivalence is a bachelor’s degree plus five years of progressively responsible experience in the specialty. There is no equivalent for a doctorate.
Clinical positions: If the position involves direct patient contact that is not incidental to the duties and the employee is a graduate of a foreign medical school, these additional requirements must be met:
- Passage of one of these exams: Federation Licensing Examination (FLEX) parts I and II, National Board of Medical Examiners (NBME) Parts I, II, and III, or U.S. Medical Licensing Examination (USMLE), Steps 1, 2, and 3;
- Competency in oral and written English shown by passage of an English proficiency exam acceptable to the Educational Commission for Foreign Medical Graduates (ECFMG) (i.e. TOEFL);
- A full and unrestricted license to practice medicine in a foreign country or a degree from a medical school in a foreign country; and
- A license or other authorization required by the state in which the individual will practice or receive graduate medical education or training.
Exemption from H-1B cap
As an institution of higher education as defined in the Higher Education Act of 1965, section 101(a), 20 U.S.C. section 1001(a), UH is exempt from the annual H-1B “cap” or “quota” and may file H-1B petitions year-round.
Step 3: Prepare H-1B request
After the UH department determines that H-1B classification is appropriate, the H-1B request process may begin. All types of H-1B requests must be submitted to FSIS no later than two months prior to the requested H-1B start date. Submission of a late request may result in an H-1B beneficiary’s inability to start working on time or even the loss of legal status in the U.S. Please note:
- USCIS must accept an H-1B petition by the business day on or before the employee’s current status end date.
- UH can request up to three years on each H-1B petition for a total of six years of H-1B status in the U.S. If the beneficiary is terminated for any reason prior to the H-1B end date, the college/school/unit/department must pay the reasonable costs of return transportation to the last place of foreign residence.
- UH can submit a petition to USCIS up to six months prior to the intended H-1B start date.
- Consult with FSIS if the worker is:
- Planning to travel abroad while the H-1B petition is pending; or
- An F-1 student whose F-1 status will end more than 60 days prior to the intended H-1B start date; or
- A J-1 exchange visitor whose program will end more than 30 days prior to the intended H-1B start date; or
- Still subject to the two-year residence requirement after being in J-1 or J-2 status. UH can’t file an H-1B petition in such a case.
- Ask the H-1B worker about family members who may require an H-4 change of status or extension; if needed, include their documents in the H-1B request packet.
H-1B request process
UH colleges, schools, departments, and units should follow each step below to complete and submit H-1B requests to FSIS.
|1||The UH sponsoring unit determines the “required wage.”
The required wage is the higher of the actual wage or the prevailing wage. UH colleges/schools are prohibited from paying H-1B employees less than this wage. FSIS cannot process an H-1B request if payment of the required wage cannot be verified.
To determine the actual wage, the college/school/department must complete the Actual Wage Calculation Form and the Actual Wage Statement. Both forms must be properly completed and submitted with the H-1B request to FSIS.
The prevailing wage is determined by the type of position the H-1B will hold. For faculty positions, the applicable minimum salary in the UHPA collective bargaining agreement (CBA) is the prevailing wage. The prevailing wage for APT positions is Step 1 of the pay band on the salary schedule under the HGEA CBA. For non-union positions, FSIS will calculate the prevailing wage using the position description matched against the occupation’s O*NET description. In rare cases, FSIS may need to obtain a prevailing wage determination (PWD) from the U.S. Department of Labor prior to completing the H-1B petition. This latter process can take 3-5 months, so departments should factor in this time when deciding on an employment start date for an unusual non-union position.
|2||The UH department initiates the H-1B request.
The UH department should work with the H-1B beneficiary to obtain necessary information and documentation for the H-1B request packet. The department should complete/gather its portion of the documents listed on the H-1B Request Form.
If any document is not written in English, provide a translation and a translator’s certification.
As part of the H-1B request packet, the H-1B worker’s direct supervisor must complete the UH Office of Export Controls’ I-129 Certification Decision Tree. After the supervisor answers the questions on the decision tree, print a hard copy of the resulting PDF form, complete items #1 and #2 on the form, and sign in the “PI/Supervisor” blank. The dean or director of the college/school/unit must also sign the form. Attach the completed form as one of the supporting documents in the H-1B request packet.
|3||The HR specialist reviews the H-1B request and attaches documents.
The UH department should forward its portion of the H-1B request packet to the HR specialist for the college/school/unit. The HR specialist reviews these documents and attaches any additional documents.
The HR specialist should send the complete request packet to an Immigration Specialist at FSIS.
|4||FSIS emails the H-1B petition filing fee amounts and USCIS mailing address options to the HR specialist.
The college/school/department (as appropriate) should request the filing fee checks, indicating that the checks be returned to the unit. The unit should hand-deliver the checks and one of the following mailing materials to FSIS as soon as possible:
Step 4: FSIS processing
Once FSIS receives the request from the HR specialist, we will review it and complete the following as long as all initial requirements are met:
- For non-union positions, issue a prevailing wage determination (PWD) (in rare cases, a PWD request may need to be sent to the U.S. Department of Labor (DOL), which can take 3-5 months);
- For union positions, provide a notice of labor condition application (LCA) filing to the collective bargaining representative (union positions); for non-union positions, forward notices to the HR specialist to be publicly posted for 10 consecutive business days;
- Prepare and submit an LCA to the DOL (may take up to 10 days for approval);
- Prepare USCIS Form I-129 Petition for a Nonimmigrant Worker;
- Prepare a cover letter for the H-1B petition;
- Prepare USCIS Form I-907 Request for Premium Processing Service (if requested); and
- Review Form I-539 for any H-4 dependents (if applicable).
After receiving the filing fee checks and mailing label/bar codes, FSIS will mail the petition with the fees to USCIS. FSIS will file-drop a copy of the petition, which includes the certified LCA, to the HR specialist and to the employee.
Step 5: USCIS processing
Once the UH department mails the H-1B petition, USCIS will conduct an initial review to ensure the petition is being timely filed with the appropriate fee. If USCIS determines the petition has been properly filed, it will mail a receipt notice to FSIS. Please note the following regarding the different types of H-1B petitions:
|Petition type||UH employment||International travel|
|Change of H-1B employer||Under the H-1B portability rule, employment may begin on the requested start date as long as USCIS has issued a receipt notice.||See important information about traveling abroad while a petition is pending.|
|Concurrent H-1B employment||Under the H-1B portability rule, employment may begin on the requested start date as long as USCIS has issued a receipt notice.||See important information about traveling abroad while a petition is pending.|
|H-1B amendment||Under the H-1B portability rule, changes to employment may take place on the requested start date as long as USCIS has issued a receipt notice.||See important information about traveling abroad while a petition is pending.|
|H-1B change of status||H-1B employment may begin after USCIS approves the petition. Employment may begin prior to approval if the beneficiary has another type of valid work authorization.||See important information about traveling abroad while a petition is pending.|
|H-1B extension||Employment in the same position under the same terms may continue for up to 240 days after the prior authorization’s end date until USCIS renders a decision, provided the petition was timely filed.
||See important information about traveling abroad while a petition is pending.|
Under regular processing, it generally takes USCIS 7-9 months to adjudicate petitions filed between November through March. However, petitions filed in April through October can take longer.
If premium processing service is requested, USCIS will act on the petition within 15 calendar days. (“Act on” = approve, deny, request further evidence, or notify of intent to deny.) USCIS offers this service for an additional fee, which may be paid only by the UH department.
While the petition is pending, departments can check its status using the receipt number and view average processing times on USCIS’s case status website.
If the petition is approved, USCIS will mail an H-1B approval notice (Form I-797A or I-797B Notice of Action) to FSIS. FSIS will send the following documents to the HR specialist for distribution:
- Memo to the employee;
- Original approval notice for the employee; and
- Contact Information Form (only for new employees), which the employee should complete and return to FSIS after starting employment.
H-1B status should automatically begin/continue upon the approval notice’s start date. The employee should not need to leave the U.S. and reenter to begin/continue H-1B employment unless a Form I-797B has been issued. If an I-797B is issued, the worker must follow the H-1B entry procedures to begin H-1B employment.
Cancellation of employment
If H-1B employment is cancelled for any reason, the HR specialist must notify an Immigration Specialist immediately so we can withdraw the LCA and the petition. If we are not timely notified, the department may be required to pay back wages plus interest to the beneficiary.
Step 6: Apply for H-1B entry
After the sponsoring unit sends the H-1B employee the approval notice and other documents, the employee should follow the steps below to apply for an H-1B visa and H-1B admission to the U.S.
|1||Apply for an H-1B visa.
Canadian citizens can skip this step and proceed to “2. Apply for H-1B admission at a U.S. port of entry” below. Individuals who already have H-1B visas that will be valid on the date they arrive in the U.S. do not need to apply for new ones and may also proceed to “2. Apply for H-1B admission at a U.S. port of entry” below.
To apply for an H-1B visa, the employee should visit the U.S. Department of State’s U.S. embassies and consulates website to view the visa application requirements and to make an appointment for a visa interview. It is best to try to apply at the U.S. embassy/consulate having jurisdiction over the place of residence, though they may apply at any U.S. embassies/consulates worldwide that permit third country nationals’ applications. If the worker was ever a visa overstay in the U.S., they must apply for the visa at a consular office in their country of nationality.
H-1B visa application requirements differ by embassy/consulate, so the employee should check directly with the specific U.S. embassy/consulate on the requirements for the visa application if there are any questions.
Generally, all H-1B visa applications must include:
If the worker has any family members who will come to the U.S. as dependents, they should follow the H-4 entry procedures.
|2||Apply for H-1B admission at a U.S. port of entry.
Next, the employee may apply for H-1B admission at a U.S. port of entry up to 10 days prior to the start date on the approval notice and bring the following items to the port of entry:
Also present H-4 admission documents for any accompanying family members.
Individuals are not guaranteed entry to the U.S. The U.S. Customs and Border Protection (CBP) officer at the port of entry will review all documents and ask the person about the purpose of the visit. These officers have the discretion to admit a person in H-1B status and any family members in H-4 status and may refer them to a more detailed secondary inspection.
When the H-1B employee is admitted into the U.S., all documents should be returned and an admission date stamp in should be placed in their passport with the notations “H-1B” (worker) or “H-4” (dependents) and a date indicating the period of authorized stay in the U.S. The CBP officer should instruct each person to access and print an I-94 arrival record on CBP’s I-94 website. The admission stamp with notations and the I-94 printout are proof of admission to and legal immigration status in the U.S. In some cases, a person may be issued a paper I-94 card at entry, but CBP is phasing those out. If anyone is issued a paper I-94, that card is evidence of legal status in the U.S.
H-1B employees and H-4 family members should keep copies of their passport biodata/expiration pages, visas, admission stamps, and I-94 records permanently in case any of these documents are lost or stolen.
|3||Send copies of entry documents to FSIS.
After the H-1B employee is admitted into the U.S., send an Immigration Specialist the following documents so we can update our records and check their admission: