H-1B Specialty Occupation Category
The H-1B visa category was established to accommodate nonimmigrant employees who come to the U.S. to work on a temporary basis. Over the past few years, the number of H-1B workers sponsored by Wake Forest University and the Baptist Medical Center has increased dramatically. As a direct result of this rapid increase, many departments, laboratories, etc. have experienced numerous misunderstandings of and problems with the confusing array of rules and regulations that govern the category. In order to reduce many of the misunderstandings, the Center for International Studies (CIS) on the Reynolda campus has produced a brief overview of the primary rules and regulations associated with the category. This document is by no means an exhaustive representation of all of the H-1B rules and regulations, but hopefully it will provide you with a rudimentary understanding of the guidelines of the category. If you have further questions, you may contact either Kent Greer of the Reynolda Campus or Pam Redmond of the Medical Center.
I. What is H-1B?
- The H-1B category was established to accommodate skilled, nonimmigrant workers who come to the U.S. to work in a specialty occupation on a temporary basis. Thee H-1B category is not classified as an immigrant visa category, although many nonimmigrants use the status as a stepping-stone to permanent residency.
- H-1B applications submitted by Wake Forest University are adjudicated by the Bureau of Citizenship and Immigration Services (BCIS) in Mesquite, Texas. Petitions are filed on the behalf of a beneficiary by Wake Forest University. BCIS rules state that an individual is not allowed to petition for H-1B status for himself/herself.
II. Maximum Amount of Time in Category
- Current BCIS rules state that an individual may spend a total cumulative period of six years in the H-1B category. An individual may, however, be eligible to obtain another six-year period if he/she spends a total of one year outside of the U.S. while not in H-1B status.
- There are special provisions within the rules and regulations for those individuals who have reached the six-year limit but who have an application for permanent residence pending with the BCIS.
III. Application Procedure
- The Wake Forest CIS or BMC Human Resources is notified of a department’s/laboratory’s intent to employ a nonimmigrant using the H-1B category.
- The immediate supervisor of the prospective employee is sent a letter that outlines what is required from the department by the BCIS in terms of relevant paper work/evidence.
- The prospective H-1B employee is asked to complete an information form and to provide copies of current immigration documents if he/she is residing within the U.S. in a different nonimmigrant category.
- Once all paper work has been submitted, a “prevailing wage determination” from the Employment Security Commission of North Carolina is requested. This step is to safeguard against employers taking advantage of nonimmigrant workers by paying them a salary that is not commensurate with what an American/permanent resident would be expected to receive for pursuing similar employment. Wake Forest is required to pay at least 95% of the prevailing wage rate. Obtaining a prevailing wage determination usually takes between 5-7 business days.
- Once a prevailing wage has been established, a Labor Certification Application is made to the U.S. Department of Labor. This is done on-line, and approval is usually instantaneous if the proposed salary meets or exceeds the prevailing wage figure.
- After all requisite documents have been submitted, the application is mailed to the BCIS in Mesquite, Texas for adjudication.
Nonimmigrants residing outside of the U.S.
- If a nonimmigrant is residing outside of the U.S., he/she will be required to visit the nearest U.S. Embassy/Consulate with jurisdiction over their place of residence in order to obtain their H-1B visa classification. This classification will not be granted, however, until the application has been approved by the BCIS Service Center in Texas. A intended H-1B nonimmigrant abroad who is waiting for an approval notice from the BCIS may not make an entry to the U.S. in another category and then change status once the H-1B is approved.
Nonimmigrants residing within the U.S.
- Approval notices for nonimmigrants currently residing with the U.S. will be mailed to the Wake Forest CIS or BMC Human Resources.
Nonimmigrants subject to the J-1 two-year home residency requirement (212(e))
- Those nonimmigrants who are subject to the J-1 two-year home residency requirement are not eligible to receive the H-1B classification until they have either fulfilled the requirement or received a waiver or “no objection” letter from thee U.S. Department of State. There is a separate application procedure for the waiver. For detailed information pertaining to this procedure, you may contact Kent Greer of the Reynolda Campus.
IV. Processing Times
- It is currently taking the BCIS more than six months to process those H-1B petitions and renewal requests that are filed without the Premium Processing Service. Employers should take this into consideration when making a decision about a nonimmigrant employee who will be required to commence employment on a certain date. Under no circumstances can Wake Forest employ a nonimmigrant who does not have the proper work authorization from thee BCIS.
- For an additional fee of $1,000, the BCIS offers a special Premium Processing Service. With payment of this fee, the BCIS guarantees that all applications filed using this service will be adjudicated within a 15-day period.
V. Length of Initial Status
- Wake Forest may apply for a period of initial H-1B status for the nonimmigrant employee that spans from one to three years. Thee length of initial status is determined by the department or the employee’s immediate supervisor. In most instances, the BCIS will grant a period of H-1B status that exceeds the amount of time that is stated in the initial contract or letter of appointment.
VI. Extension of Status
- A nonimmigrant employee currently in H-1B status can have his/her status extended as long as the extension does not surpass the six-year cumulative limit.
- Adjudication by the BCIS is required for all extension requests. Like the initial petition, adjudication usually takes between six to seven months.
- A request for extension involves submitting another petition to the BCIS.
- An extension of status may be granted for a period of between 1-3 years.
VII. Travel While in H-1B Status
A nonimmigrant currently residing in the U.S. in H-1B status may leave and make a reentry to the U.S. as long as he/she has the following documents when they reach their initial point of entry:
- A passport that is valid for at least six months or longer
- A valid/unexpired visa stamp affixed in the passport
- Original approval notice (I-797) issued by the BCIS for employment at Wake Forest University (All H-1B approval notices for Reynolda Campus employees are kept on file in the CIS.)
- Although not required per the rules and regulations, it is also a prudent measure for the nonimmigrant to have a letter from his/her immediate supervisor that verifies current employment status with Wake Forest.
- Travel to Canada or Mexico for 30 days or less
A nonimmigrant may travel to Canada or Mexico for 30 days or less and make a reentry to the U.S. with an expired H-1B visa stamp in his/her passport. This visa waiver rule also applies to some of the Caribbean islands. For an exhaustive list of islands that are a part of the waiver system, contact Kent Greer of the Wake Forest CIS. This rule, however, does not exclude a nonimmigrant from having a valid H-1B approval notice when he/she reenters the U.S.
- Travel while extension of stay is pending
A nonimmigrant may travel abroad while an extension of stay is pending with the BCIS provided that he/she returns to the U.S. prior to the expiration date listed on their current H-1B approval notice.
- Travel while a change of status to H-1B is pending with the BCIS
A nonimmigrant who leaves the U.S. while a change of status request is pending with the BCIS is considered to have abandoned his/her petition and will most likely be denied entry to the U.S. at their initial point of entry. A nonimmigrant who leaves the country and reenters in another nonimmigrant category while a change to H-1B is pending with the BCIS will not be allowed to adjust status to H-1B in the U.S. even if/when the petition is approved by the BCIS.
- Travel while a change of employers petition is pending with the BCIS (portability provision)
The BCIS has stated that a nonimmigrant who has filed for a change of employers may leave and reenter the U.S. in their current H-1B status as long as they are in possession of the following documents when they arrive at their initial port of entry:
- Passport that is valid for six months or longer
- Valid visa stamp affixed in the passport (visa stamp can be noted with former employer’s name)
- Copy of previously issued Form I-94 (arrival/departure record)
- I-797 receipt notice from the BCIS (This document proves to the inspecting officer that an application for a change of employer was filed in a timely manner with the BCIS.)
- Form I-797 approval notice/notice of action for previous employer (This document may be used by those visa-exempt nonimmigrants (i.e. Canadians) who were not issued Form I-94 when they entered the country.)
VIII. Loss of Employment
- A nonimmigrant whose employment relationship is terminated is considered to be out of nonimmigrant status the moment that the relationship between employer and employee ceases to exist. The BCIS has stated that there is no “grace period” for H-1B employees who lose their jobs. This being the case, the nonimmigrant must make an immediate departure from the U.S. because he/she is no longer effectively maintaining their nonimmigrant status.
- The Draconian nature of this law does not take into consideration the real-world ramifications of those people who have resided in the U.S. for a substantial period of time and must deal with the many facets of moving personal property, family members, etc. back to their countries of permanent residence.
- For this reason, if circumstances permit, department heads and supervisors should provide the nonimmigrant with ample warning as it pertains to the possible loss of employment. This will afford the nonimmigrant time to prepare for departure or look for a new employer in the case that he/she wishes to remain in the U.S. in H-1B status
- An employer who does not terminate an H-1B employee’s status and continues to keep him/her on the payroll without actually paying any salary (i.e. benching) can be held responsible for the payment of all back wages if they are found to be in violation of the Department of Labor’s non-payment of wages regulation.
IX. Change of Employers
- A nonimmigrant who is maintaining valid H-1B status is eligible to change employers.
- A change of employer can only occur when the new employer files an H-1B petition for the change with the BCIS on behalf of the nonimmigrant beneficiary.
- Once BCIS has confirmed that they have received the new H-1B petition for a change of employer, a nonimmigrant who currently holds valid H-1B status may begin work for the new employer prior to adjudication. This is allowable under the “portability” provision.
- Employees and employers should be aware of the fact that prior to granting an approval for the new employment, the BCIS often requests a history of wage payment and other time-sensitive evidence for the purpose of determining whether or not the intended beneficiary was maintaining valid H-1B status prior to the submission of the change of employer request.
X. Dependents in H-4 Status
- The spouse and unmarried minor children of an H-1B principle employee are classified as H-4 dependents. Children aged 21 or older are not eligible for the H-4 dependent classification.
- Dependents are appended to the H-1B petition through the submission of Form I-539 to the BCIS.
- H-4 dependents are not allowed to pursue any type of employment in the U.S.
- Under current rules, H-4 dependents are allowed to pursue a full or part-time course of study.
XI. BCIS Fee Schedule (as of 10/13/03)
- Form I-129 (H-1B application fee): $130.00
- Form I-539 (H-4 dependents): $140.00
- Form I-907 (request for Premium Processing): $1000.00
XII. Annual Limit (H-1B Cap)
- Since Wake Forest is a non-profit institution of higher learning, all H-1B petitions filed by the university are not counted as a part of the H-1B annual limit, or “cap.” The H-1B cap limits the number of visas that are available to nonimmigrants each year. Counting against the cap begins on October 1st, and continues until the beginning of a new fiscal year for the U.S. government or until the cap is reached, whichever comes first. The annual cap for fiscal year 2004 has been reduced to 65,000 from its previous level of 195,000.