H-1B Basics

WHAT IS AN H-1B VISA?

The H-1B Temporary Worker visa allows foreign nationals to work in the United States in specialty occupations for a period of up to six (6) years. When applying for H-1B visa status, UNK must establish that the employee will be working temporarily at the university in a specialized occupation. The law defines a specialty occupation as one that requires the theoretical and practical application of a highly specialized body of knowledge and for which attainment of a baccalaureate degree (or its equivalent) is a minimum for entry into the occupation in the United States. Basically, a specialty occupation is a professional position.

In general, an individual may hold H-1B status for a maximum of six (6) years, available in increments not to exceed three (3) years. The employer may not obtain approval for an H-1B worker if the worker has already been present in the U.S. continuously in either the H-1B or L-1 categories for the preceding six (6) years. Periods of stay in H and L status are added together and BOTH count toward the six-year limit. When the alien reaches the limit, he/she must reside abroad for a period of one (1) year before he/she can reenter the U.S. in the H-1B category.

PLEASE NOTE: Because of the multiple steps, and the multiple government agencies involved, we cannot guarantee that the H-1B petition will be approved by any specific date. We can only provide estimates of the timing involved, based on recent trends. We recommend that the application be made as far in advance of the proposed start date as permitted by law. H-1B petitions may be filed up to six (6) months in advance of a proposed H-1B start date, but not earlier. The H-1B application process can be time consuming. Contrary to common rumors, it is not necessary to prove that there are no U.S. workers available.

Change of H-1B Employers (known as a portable case): An approved H-1B petition is not transferable between employers. If an applicant decides to change employers, he/she must begin the entire process again. However, an applicant who is already in H-1B status may begin working at the new employer as soon as the new H-1B application is received by USCIS. Final USCIS approval is not required for the employment to begin, but only the issuance of the USCIS receipt notice.

Dependents: Dependents of H-1B visa holders are on an H-4 visa and are not authorized to accept employment under any circumstance. H-4 visa holders may apply to change their visa status to H-1B if they find an employer who is willing to file a petition on their behalf.

WHAT ARE THE FOUR STAGES?

  1. Information/Evidence gathering: Department requests forms from the OIE (Office of International Education) office, completes forms, gathers supporting documents, credential evaluation if necessary, and returns the completed forms and documents to OIE office located in Welch Hall.
  2. Prevailing wage information: requires the employer to obtain documented information regarding the prevailing wage for similar positions in the same geographical location as that in which the alien will be employed. The employer must pay the alien no less than 95% of the prevailing wage when obtained. The prevailing wage determination is used to support the LCA and that determination must have been obtained within 90 days prior to the filing of the LCA.
  3. Labor Condition Application: The employer must complete and sign an LCA which attests to a number of complex facts regarding payment of the prevailing wage and the working conditions for the employee. Copies of the signed forms, which include instructions for filing complaints, must be posted in two locations on the employer's (UNK unit) business premises for ten business days. The signed LCA must be filed with DOL. The LCA form may be filed no more than six months before the date for commencement of employment. Upon receiving the prevailing wage determination, the OIE office prepares the LCA and sends it electronically to DOL to be certified. This step takes approximately three to five days.
  4. Petition for nonimmigrant worker (Form I-129, and Form I-539 for any dependents): The employer's last step in the H-1B process is filing a petition for nonimmigrant worker with the USCIS. The OIE office and the department prepare the USCIS Form I-129 (I-539 for dependents) together and they are signed by the department. The department will be asked to provide a check made out to "Department of Homeland Security" in the amount of $185 for the filing fee. The check must be drawn on a U.S. bank in U.S. funds. USCIS will not accept foreign checks, even in U.S. dollars. The filing fee for the I-539 (for dependents) is $195. The OIE office sends the entire petition to the USCIS via Federal Express. Note: All checks must be sent to the OIE office.

The whole process can take anywhere from 3 to 5 months (subject to change), depending upon government and departmental response times. All services by the OIE office will be provided in a timely and expeditious manner. Without completion of the previous stage, it is impossible to proceed to the next stage.

WHAT IS PREMIUM PROCESSING?

USCIS has now instituted a system by which applications for H-1B status can be expedited if required. The fee for the service is $1,225.00, on top of the normal $320.00 filing fee and/or the $500.00 Fraud Fee. Premium Processing can only be initiated by submitting current Form I-907 with the petition. There are a few things to be aware of. First, the expedite service only covers the USCIS processing time. It does not provide any mechanism for expediting the Department of Labor Prevailing Wage Request, or the Federal Department of Labor LCA. An approved LCA is required before submission of the H-1B petition can be made to USCIS. Second, the expedite service only promises a response to the petition within 15 days. If, for some reason, USCIS decides that more information is required, a "request for evidence" (RFE) will constitute their response. In other words, an approval is not guaranteed within 15 days - just a response. If an RFE is generated, the 15 day clock begins again when USCIS receives the requested additional evidence. Even with these limitations, the expedite service can cut filing times considerably.

All checks must be made payable to "Department of Homeland Security". Each fee must be paid on a separate check and the employer (UNK) is responsible for payment of all fees. The possible exclusion to fee payment requirement is the Premium Processing cost. If the department delayed the processing of the H-1B request, it will be the Department's responsibility to pay the fee. However, if it is a convenience request by the H-1B member, the fee can be paid by the H-1B recipient. The department must advise the OIE office of this exception in writing and stand behind the validity of the recipient's check.

Please mark "Premium Processing Requested" at the top of the H-1B Application packet in order to request this service.

For more information on Premium Processing, see the USCIS website.

WHAT IS THE CURRENT ANNUAL CAP FOR H-1B VISAS?

Universities are exempt from the annual H-1B cap, effective October 17, 2000. There is no limit on the number of H-1B petitions the University of Nebraska at Kearney may submit. This makes the university a "Cap Exempt Petitioner."

WHAT CAN BE DONE TO AVOID ANY DELAY IN THE PROCESS?

  • Carefully read this information package, subsequent memos, directions and emails from the OIE office.
  • Follow the instructions before filing/signing/sending any documents. Type or clearly print the forms.
  • Provide clear and readable documents/copies and reduce them to letter size. Make sure the entry date can be read on the copies of the alien's I-94 card.
  • If any documents are faxed, please also send them by mail.
  • Promptly submit all the requested documents to the OIE office; DO NOT hold them unless there is a legitimate reason (be aware that these are time sensitive documents).
  • If you cannot provide a document or data, include an explanatory note indicating when you'll return it to the OIE office. Do not leave any questions blank. There is a reason for each one.
  • Use paper clips. Do not staple any items.

During the process, the applicant should contact the department first with questions. If the OIE office needs additional documents or clarification, the OIE office will let the department know.