H-1B: TEMPORARY NON-IMMIGRANT WORKERS’ VISA: APPLICATION INFORMATION – PART I; FREQUENTLY ASKED QUESTIONS
WHAT IS AN H-1B?
The H-1B is a nonimmigrant visa classification used to hire a foreign national on a temporary basis in a specialty occupation. The H-1B visa status requires a sponsoring U.S. employer such as West Virginia University.
WHAT IS A SPECIALTY OCCUPATION?
An H-1B occupation qualifies as ?specialty occupation? if it requires the theoretical and practical application of a body of specialized knowledge along with at least a Bachelor?s degree or its equivalent. For instance, engineering, mathematics, physical social and life sciences, business specialties, accounting, and the arts are specialty occupations. This definition seldom presents any difficulties since virtually all positions for which WVU considers an H-1B meet this condition
IS THERE AN ANNUAL LIMIT ON THE NUMBER OF H-1B ALIENS?
Yes, the current law limits to 65,000 the number of aliens who may be issued a visa or otherwise provided H-1B visa status per year. An additional 20,000 H-1B visa slots have been added for individuals graduating with advanced degrees from U.S. schools. However, the annual limit DOES NOT apply to colleges and universities.
WHO FILES THE H-1B APPLICATION AT WVU?
All H-1B requests must be processed through the Office of International Students and Scholars (OISS). Outside attorneys are not authorized to petition for H-1B status for any University employee.
HOW LONG CAN AN ALIEN BE IN H-1B STATUS?
An alien can hold H-1B status for a maximum period of six years at a time. After reaching the six-year limit, an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens may obtain an extension of H-1B status beyond the 6-year maximum period when:
? 365 days or more have passed since the filing of any application for Labor Certification that is required or used by the alien to obtain EB immigrant status
OR
? 365 days or more have passed since the filing of an EB immigrant petition
WHAT IF THE TERMS OF EMPLOYMENT CHANGE AFTER THE INITIAL FILING AND APPROVAL?
U.S. Citizenship and Immigration Services (USCIS) must be informed of material changes in the employment approved in the initial petition. If there are changes in the terms of employment (including promotions, change of duties), the OISS must be consulted to determine whether an amended or new petition must be filed.
HOW DOES ONE APPLY?
The H-1B petition process involves two steps. First, WVU must file a Labor Condition Application (LCA) attesting to several items, including payment of the ?required wage? for the position, and the working conditions offered. WVU must then file the certified LCA and the Form I-129 petition with USCIS. Based on the USCIS petition approval, the individual may apply for the H-1B visa overseas or request a change of nonimmigrant status within the U.S.
WHO PAYS THE FEES?
All fees associated with the filing of H-1B petitions are regarded by the Department of Labor as “business expenses”. These fees are the responsibility of each individual department/college/school.
WHAT IS H-1B PORTABILITY AND HOW DOES IT WORK?
An individual who already holds an H-1B visa status with another U.S. employer is eligible to transfer to WVU under a new ?portability? provision. (AC21). The individual may begin working for the WVU as soon as WVU has filed its petition and received an official notice of receipt from USCIS.
WHAT IS CONCURRENT H-1B EMPLOYMENT AND HOW DOES IT WORK?
An individual can work for more than one U.S employer at one time as long as each employer petitions for the individual?s H-1B status.
DOES THE CURRENT LAW ALLOW FOR OCCASIONAL LECTURES AT AN INSTITUTION OTHER THAN THE INDIVIDUAL?S PLACE OF EMPLOYMENT?
Yes. Such activities are allowed provided they are incidental to the alien employee?s H-1B activities at WVU. However, no honorarium, wage, salary or material gain may be derived from these activities. Reimbursement for transportation and reasonable living expenses is permissible.
HOW LONG DOES IT TAKE FOR AN H-1B PETITION TO BE PROCESSED?
For accurate information on H-1B processing times, please consult the USCIS home page at http://uscis.gov.
CAN THE USCIS PROCESS BE EXPEDITED?
USCIS provides a two-week premium adjudication process for an extra fee of $1,000.00. This fee is in addition to the standard processing fee of $ 320. The request for premium processing can be placed either at the time of H-1B petition filing or during the pending petition process. If the University derives any benefit from the payment of the ?premium processing? fees, it is a University expense and must be paid by the hiring unit. However, if the alien employee is the party desiring the premium processing for purely personal reasons, then the cost must be borne by the alien employee. For example, the employee decides that he/she does not wish to wait the prolonged period for regular processing and opts for ?premium processing? in order to speed up travel plans and preparations.
CAN AN H-1B INDIVIDUAL TRAVEL OUTSIDE THE UNITED STATES
Yes. The current law allows an individual holding H-1B to reenter the U.S. during the validity period of the visa and approved petition.
CAN AN H-1B INDIVIDUAL IMMIGRATE PERMANENTLY TO THE UNITED STATES?
Yes. An H-1 B individual is eligible for an immigrant (Permanent Residence) visa and can apply for Adjustment of Status without affecting H-1B status. This is known as ?dual intent? and has been recognized in the immigration law since passage of the Immigration Act of 1990. During the time that the application for Permanent Residence is pending, an individual may travel on his or her H-1B visa without the need of requesting an advance parole from USCIS to return to the U.S.