Western Kentucky University

International Student Office - H-1B Visa

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What is an H-1B?

The H-1B visa is a nonimmigrant visa used to bring foreign nationals to the U.S. to temporarily employ them in a position that requires specialized knowledge/training. To qualify for this category, the position applied for must require at least a Bachelor's Degree as a minimal entry-level requirement. In WKU's case, this visa is generally used for international professors in both temporary and tenure track positions.

Current regulations require the filing of a Labor Condition Application with the Department of Labor prior to filing the actual H-1B application. In order to file a Labor Condition Application, a Prevailing Wage Request must first be filed with the Kentucky Department of Labor. The entire H-1B process can take up to three months to complete; therefore, please allow ample processing time.

A basic difference between this visa category and other non-immigrant visa categories is that the employer (WKU), not the alien worker, is the applicant. The employer is referred to as the "petitioner" and the alien worker becomes the "beneficiary" of the H-1B petition when it is approved by the Department of Homeland Security (DHS).

Why Choose H-1B Visa Status Over Another Visa Status?

When someone files for an H-1B visa, he or she can be approved for an initial period of three years, with an extension option of three additional years, for a maximum stay of six years. This is an advantage over the J-1 visa, which can be issued initially for up to three years, with an additional three years possible in rare cases. Also, an H-1B alien may apply for adjustment of status to permanent residency or for change of status to another nonimmigrant classification, whereas some J-1 aliens are prohibited from such changes because of the two-year home-country physical presence requirement.

What If We Want To Hire Someone Who Already Is In H-1B Status At Another University? An alien in H-1B status who is changing employers is eligible to work for the new employer as soon as the new employer files an H-1B application with the DHS. However, should the H-1B application be denied, the individual's employment authorization will terminate. Note: New legislation passed in early October 2000 allows an H-1B worker to change positions in this manner. Previously, an H-1B worker could not change positions until the new employer's petition was approved.

Is There An Annual Cap On The Number Of H-1B Visas That Can Be Approved?

Current employees of higher educational institutions are exempt from the H-1B visa cap.

What Are The Steps Involved?

When dealing with the DHS, you must fill out forms.

First, The employer must establish the "prevailing wage" for the position by contacting the State Employment Security Agency (SESA) in the state where the employment will occur.

In our case, this is done by filing a Prevailing Wage Information Request with the Kentucky Department of Employment Services. (See example Prevailing Wage Information Request attached as Exhibit A.) The employer is required to pay 95% of the prevailing wage to the H-1B alien worker. If you believe the SESA determination is too high, it can be contested, or another source of wage information can be used; however, I would recommend consulting Human Resources and/or an attorney for either of these options.

Second, the employer must then complete a Labor Condition Application (LCA) and send it to the Department of Labor's office.

The LCA usually is now done online and is approved immediately. In a LCA, the employers makes to the following four statements:

1. The employer attests that it will pay an H-1B immigrant the "required wage rate," which is the HIGHER of either the "actual wage" or 95% of the "prevailing wage."

2. The employer must attest that the employment of the H-1B nonimmigrant will not adversely affect the working conditions of similarly employed individuals in the area of intended employment.

3. The employer must attest that at the time of filing there is no strike or lockout, nor work stoppage in the course of a labor dispute in the occupational classification at the place of employment.

4. The employer must provide notice of the filing of the LCA in two ways:

a. Notice to employees at the work site; and

b. Notice to the individual.

Note: When an employee is promoted, the file must be updated to reflect the salary increase. If the promotion involves a significant change in the alien's duties, a new LCA and an amended H-1B petition is usually required.

On the day the LCA is filed, WKU is required to make a Public Access File available regarding the H-1B application. The Public Access File must be kept for one year beyond the validity of the LCA. A complete copy of the Public Access File is kept in the International Student & Scholar Services (ISSS) office.

The Public Access File must include:

1. A copy of the LCA;

2. A statement of the rate of pay for the H-1B worker;

3. A copy of the Prevailing Wage Determination from the Kentucky Department for Employment Services;

4. An Actual Wage Memorandum explaining how WKU calculated the actual wage for the job;

5. A Notice of Posting of the LCA in the Department and in Human Resources; and

6. A Notice of Receipt of the LCA by the H-1B employee.

Third, once the LCA is returned, the employer completes an I-129 and H Supplement Form and sends it to the DHS along with supporting documents, and a check for filing fees.

The supporting documents include: curriculum vita, degrees, diplomas, honors, letters of reference, publications, membership in professional organizations, contract letter indicating job offer and salary, and any other qualifications.

Does the position qualify as a "specialty occupation?"

General rule: the occupation must require at least a bachelor's degree in a specific field of endeavor as a minimum entry-level requirement.

Does the alien possess the minimum requirements to fully perform the occupation?

Alien must possess the minimum degree required by the specialty occupation and, if the occupation requires licensure to fully perform the duties of the job, the alien must have the required licensure. 

Is the alien eligible for H-1B status?

Prior use of H or L status, or status as a J exchange visitor subject to the two-year home residence requirement, may affect H-1B eligibility.

Does the employer agree to the obligations of H-1B sponsorship?

Employer must pay the cost of return transportation abroad if alien is terminated prior to expiration of H-1B petition. (If the H-1B worker voluntarily terminates employment, the employer is not liable for the cost of return transportation abroad.) The employer must comply with LCA regulations. Also, the employer must wait to employ alien until DHS approves employer's I-129 H-1B petition and alien obtains H-1B status.

 

H-1B Form Checklist

From Department:

From International Office:

  • Prevailing Wage Determination
  • ETA 9035 – LCA
  • I-129 ($320)
  • I-129 H-1B Data Collection Supplement ($500)
  • I-129 H Classification Supplement

From Employee:

From Employee’s Family, If In U.S.:

For information on bringing dependents, click here.

The entire H-1B application process can take three months or more. The main purpose of this long, detailed application procedure is to ensure that the employer proves to the that the alien is in a specialty occupation and deserves to work in the United States.

 

How Far In Advance Can We Apply For An H-1B Visa?

An I-129 petition may be submitted up to six months prior to the employment start date.

 

How Long Before And After The H-1B Petition Approval Dates Can An H-1B Nonimmigrant Be In The U.S.?The DHS may admit the

H-1B alien to the United States for a period up to 10 days before the petition approval start date and up to 10 days after the petition approval expiration date.

Can An H-1B Nonimmigrant Travel Abroad?

For more information on travel while on H-1B, please download this document: Travel on H-1B

For information on how to obtain your visa stamp while aboard, please download this document: Applying for Visa Stamp

Can An H-1B Nonimmigrant Worker Be Paid For Outside Speeches/Lectures?

An H-1B worker is permitted to make occasional speeches and lectures at other institutions or at conferences, but he or she may not receive compensation for these activities.

Can An H-1B Nonimmigrant Worker Enroll In Classes?

An H-1B worker may take classes, provided the classes are incidental to the alien's employment as an H-1B nonimmigrant and not the alien's primary purpose in remaining in the U.S.

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 Last Modified 7/2/14