H-1B_overview by dandanhuanghuang

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									           UNIVERSITY OF MISSISSIPPI MEDICAL CENTER
          AN OVERVIEW OF THE H-1B NONIMMIGRANT CLASSIFICATION

H-1B requirements

The position in which the H-1B nonimmigrant will be employed must be in a “specialty
occupation” (i.e., at the professional level) and must require a bachelor’s or higher level degree as
a minimum entry-level requirement. This can be established by showing that:

       A baccalaureate or higher degree is the normal minimum entry-level requirement.
       The degree requirement is common in the industry
       The employer only hires individuals with baccalaureate or higher level degrees for this
        job
       The nature of the position is unique or so complex that the knowledge necessary to
        perform the duties of the position would normally require a baccalaureate or higher level
        degree.

The individual must meet the minimum requirements established for the position by possessing:

       A U.S. bachelor’s or higher level degree (specified in the job’s minimum requirements).
       A foreign degree which has been determined to be equivalent to a U.S. degree. The
        equivalency can be certified through a credentials evaluation.
       An unrestricted State license or certification that authorizes the individual to practice in
        the job.
       Education, specialized training or experience that is equivalent to the required degree
        (Three years of progressive experience equals one year of formal education ).

Positions requiring licensure

If a license is required for the position, the individual applying for the H-1B must obtain the
license. When the employer files the H-1B petition, a copy of the license or other evidence of
licensure must be included.

If full licensure is normally required for a position, but an individual is allowed to perform the
duties of the position with an interim or temporary license (under the supervision of others), H-1B
status can be granted for up to one year or for the validity of the interim or temporary license,
whichever is longer.

Qualifications for Foreign Medical Graduates (FMGs) applying for H-1B status

In addition to the basic requirements above, FMGs must provide the following documentation:

       Evidence that he/she has passed Steps I, II, and III of the United States Medical
        Licensing Examination (USMLE). Equivalent examinations offered prior to the
        introduction of the USMLE are also acceptable.

       Show competency in oral and written English by passing the English competency portion
        of the USMLE. If the physician has been issued a certificate by the Educational



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       Commission for Foreign Medical Graduates (ECFMG), English proficiency is noted on
       the certificate.

      Possess a full and unrestricted license to practice medicine in a foreign country, or be a
       graduate of a foreign medical school.

      Possess a license or authorization required by the state in which he/she will practice.

Department of Labor requirements regarding H-1B employees

Labor Condition Application (LCA) – The employer must file this form with the Department of
Labor (DOL) attesting to the following:

   1. The H-1B employee will be paid the “required wage” which is defined as the higher of
      the actual wage rate or the prevailing wage rate.

           -   The actual wage rate is defined as the wage or salary paid to other employees in
               an organization who perform similar work and have comparable experience and
               qualifications. At UMC, the actual wage rate for staff positions is the wage or
               salary paid to employees assigned the same job title, who are working in the
               same department, and have comparable experience and qualifications. With
               regard to faculty positions, the actual wage is the salary paid to faculty who are in
               the same discipline and who have comparable experience and qualifications.

           -   The prevailing wage rate is defined as the average of wages paid to individuals
               in the area of intended employment who have jobs that are substantially
               comparable. Prevailing wage determinations are obtained from the National
               Prevailing Wage and Helpdesk Center (NPWC) in Washington, D.C. Obtaining
               the prevailing wage in this manner provides a “safe harbor” for the Medical
               Center because the Department of Labor will not dispute a prevailing wage
               provided by the NPWHC. The NPWC uses data from the Occupational
               Employment Statistics Survey (OES), a survey managed by the Bureau of Labor
               Statistics, for prevailing wage determinations. The prevailing wage data from the
               OES survey is revised each fiscal year and is effective on July 1 of each year.
               The data fluctuate considerably from year to year. Unfortunately, the prevailing
               wage data is often skewed, resulting in excessively high prevailing wage levels.
               If the prevailing wage determination from the NPWC is higher than the actual
               wage, the employer must either increase the offer to match the prevailing wage,
               or forego the hiring of the candidate. Due to budget constraints and/or internal
               equity issues, increasing the wage/salary may not be an option. The employer has
               the option of locating a published survey or an independent survey that is in line
               with the intended offer; however, these surveys can be expensive, may be
               difficult to find, and do not afford a “safe harbor” in the event the wage comes
               into question by the Department Labor.

       The “required wage” must be paid at all times during the H-1B validity period entered on
       the Labor Condition Application even if the employee is placed in a non-productive
       status for reasons such as training, failure to obtain required licensure, lack of assigned
       work, etc. However, the employer is not obligated to pay the required wage for periods in
       a non-productive status for conditions unrelated to employment such as maternity leave,
       FMLA, etc.


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    2. The working conditions of U.S. employees (hours of work, shifts, vacation periods,
       promotion opportunities) will not be adversely impacted by the hiring of the H-1B
       employee. Also, the H-1B employee will be afforded the same working conditions and
       benefits as U.S. workers.

    3. At the time of the filing of the H-1B petition, there is no labor dispute involving a strike
       or lockout at the workplace

    4. Notices containing information specified by the Department of Labor will be posted in
       two conspicuous locations at the worksite to ensure that employees are aware of the
       hiring of the H-1B employee. At UMC, a notice is posted on the HR notice board near
       the cafeteria and in the sponsoring department.

The employer is required to prepare and maintain inspection files associated with the attestations
made in the Labor Condition Application. A Public Access file must be created for the general
public, and a separate Department of Labor inspection file must be made available in the event of
a DOL investigation.

Limitation on availability of H-1B visas (H-1B cap)

There is an annual limit of 65,000 H-1B visas that can be issued within the federal fiscal year,
which begins October 1 and ends on September 30. This is referred to as the “H-1B Cap.”
There are an additional 20,000 petitions made available for Masters and Ph.D. degree holders.
Once this cap has been reached, no additional H-1B slots are available until October 1 of the
following year. As a result of this, businesses usually begin filing H-1B petitions on behalf of
their employees in April of each year to ensure that an H-1B slot will be available for them on
October 1. Fortunately, institutions of higher learning as well as nonprofit and governmental
research organizations are exempt from the H-1B cap, so this is not a concern for UMC-
sponsored H-1B employees.

Acquiring initial H-1B status

An individual can acquire H-1B status in one of two ways: (1) if the individual is outside of the
United States, he/she can apply for an H-1B visa at a U.S. consulate or embassy, or (2) if the
individual is already in the United States in another nonimmigrant status (F-1 student, J-1
exchange visitor, etc.), he/she can request a change of status to the H-1B classification.

Obtaining an H-1B visa outside of the United States

An employer interested in sponsoring an individual under the H-1B classification, must file an
H-1B petition with United States Citizenship and Immigration Services (USCIS). In the
appropriate section of the H-1B petition, the employer must include the address of the U.S.
consulate where the prospective H-1B will apply for his/her visa. When the petition is approved
by USCIS, both the employer and the designated U.S. consulate will receive notification. USCIS
will mail an H-1B approval notice (Form I-797) to the employer, who will in turn mail the notice
to the H-1B candidate. The candidate will then take the approval notice to the nearest U.S.
consulate/embassy and apply for an H-1B visa. Although most consulates require the H-1B
employee to have the original approval notice available at the time of the visa interview, the
actual verification of the applicant’s H-1B eligibility is initiated online by the consulate via the
Department of State’s Petition Information Management System (PIMS).


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Obtaining an H-1B classification within the United States

Individuals who are already present in the United States in another nonimmigrant status (J-1, F-1,
etc.) can request, through their employer, a change of status to the H-1B classification. The same
H-1B form (Form I-129) is used to file an initial petition or a change of status. When submitting
the change of status request to USCIS, the employer must include documentation to verify that
the applicant is currently in a valid nonimmigrant status and has maintained all terms and
conditions of that status.

Note: In many cases, J-1 exchange visitors are subject to a two-year home country physical
presence requirement after completion of their program. J-1s who are subject to this requirement
must either return to their home country for at least two years or obtain a waiver of the
requirement before they are eligible to change to H-1B status.

Doctrine of “dual intent”

The H-1B classification benefits from the doctrine of “dual intent.” Unlike those who apply for
other nonimmigrant classifications (J-1, F-1, etc.), individuals applying for H-1B visas are not
under the presumption of “immigrant intent.” In other words, when applying for a visa, H-1B
applicants do not have to prove to the consular officer that they have ties to the home country
 (assets, family, etc.) and intend to return. Dual intent allows an individual to initially work
temporarily in the United States under an H-1B status and have a long-term goal of eventually
becoming a permanent resident.

Period of authorized stay

An individual can remain in H-1B status for a maximum of 6 years. An initial period of H-1B
authorization can be requested for up to 3 years and can be extended for an additional 3 years.
Due to the paperwork required, the expense of filing fees, and the time it takes to process an H-
1B petition or extension request, it is recommended, when feasible, to request an initial
employment period of 3 years. On the other hand, if the employer has a need for the services of
the H-1B employee for a specified period, the period of employment entered on the H-1B petition
should be limited to that time frame. Also, if there are issues such as uncertainty as to whether or
not a grant will be funded, then a request for an employment period of one or two years may be
more appropriate.

An H-1B employee’s authorization can be extended beyond the 6-year maximum, in 12-month
increments, in the following situations:

   A Labor Certification (the first step toward obtaining permanent residence) has been filed
    with the U.S. Department of Labor, and the application has been pending for at least 365
    days.

   An immigrant petition (Form I-140) has been filed with USCIS on behalf of the employee
    and the petition has been pending for at least 365 days.

   The employee has qualified to file for permanent residence (a Form I-140 has been approved
    by USCIS) but the total number of immigrant visas allotted for his/her home country for the
    fiscal year have already been issued and a visa is not currently available to him/her. Under



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    these circumstances, the H-1B employee’s authorization can be extended for an additional 3
    years beyond the 6-year maximum.

Under the conditions referenced above, if the Labor Certification Application or immigrant
petition is denied, the H-1B employee must depart the U.S. immediately.

Extension of stay in H-1B status

An H-1B’s employer can file a request with the USCIS to extend the authorized stay of the
employee. The procedure for filing an H-1B extension is almost identical to the procedure used
to file an initial H-1B petition. An extension request may be filed up to 6 months before the
employee’s current H-1B authorization expires. It is not uncommon for an H-1B employee’s
current authorized period of stay to expire before his/her extension request is processed and
approved by USCIS. As long as an H-1B extension request is filed by the employer and received
(does not have to be approved) by USCIS before the expiration date of the employee’s current
authorization, the employee can continue to work for up to 240 days beyond the expiration date.

Expiration of H-1B status

It is important to note that the USCIS does not provide for a “grace period” under the H-1B
classification as is the case with some other nonimmigrant classifications. Therefore it is essential
that the employer monitor the H-1B employee’s status and ensure that requests for extensions of
stay are filed timely. If an H-1B employee remains in the United States beyond the expiration
date recorded on his/her Form I-94 Departure Record, and his/her employer has not filed a
request for an extension of stay prior to that date, the employee will be considered to be out of
status and must depart the United States.

Changing employers

Individuals who are already in H-1B status within the United States have the right to change
employers; however, since H-1B status is “employer specific,” the individual’s H-1B
authorization at one employer does not automatically transfer to the new employer. The new
employer must file a new H-1B petition and follow the same procedure that was used to obtain
the employee’s initial H-1B status.

An H-1B employee who wants to change employers can take advantage of the “portability”
provision. Under the portability provision, an individual can begin working for the new employer
as soon as the H-1B petition is officially filed with USCIS rather than waiting until the petition is
approved, which is the normal requirement. This is very beneficial in light of the fact that the
normal H-1B petition processing time can take up to 4 months, depending upon USCIS’s
backlog. Note: As a precautionary measure, the Human Resources Department considers
an H-1B petition to be officially filed only after receiving written notification from USCIS
that they have received the H-1B petition. In order to qualify for H-1B portability an
individual must:

       Have been previously issued an H-1B visa, or otherwise provided H-1B nonimmigrant
        status.
       Have been lawfully admitted to the United States as a nonimmigrant.
       Not have engaged in employment without authorization since being admitted to the U.S.
       Be the beneficiary of an H-1B petition for new H-1B employment filed with USCIS
        before the expiration date of the current H-1B authorization.


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Multiple H-1B employers

An individual in H-1B status is allowed to work for multiple employers, but because H-1B
authorization is employer specific, each employer is required to have a separate H-1B
authorization for the employee. Work performed by an H-1B employee for multiple employers is
referred to as “concurrent employment.”

Part-time employment

Employers are allowed to sponsor individuals for part-time H-1B employment; however, an extra
burden is placed upon an employer when dealing with part-time H-1B employees because the
Department of Labor (DOL) requires that hours worked per day and per week be recorded by the
employer. This is not an issue with employees who are normally paid on an hourly basis, since
employers are required by law to maintain such records. On the other hand, when physicians or
other employees have an agreement with an employer to work on a part-time basis at a fixed
annual salary, it may be extremely difficult, if not impossible, to keep up with those employees’
hours. Also, since the DOL requires that the pay rate for part-time H-1B employees be stated as
an hourly figure, the employer must not only calculate the part-time worker’s actual hourly rate of
pay based on the estimated number of hours to be worked during the year, but must ensure that
the employee will be paid for all hours worked. This could be a problem if the employer has
budgeted a specific amount for the employee’s salary for the year. Due to the potential DOL
issues that may arise from sponsorship of part-time employees paid a fixed salary, it is suggested
that UMC departments weigh this decision carefully. Departments should understand that
they will be responsible for monitoring and recording the hours of all of their part-time
H-1B employees and ensuring that those employees are paid the appropriate hourly rate for
all hours worked.

Change in duties or terms /conditions of employment

As a part of the H-1B process, an employer who sponsors an individual for H-1B status attests
that the employee will perform specific duties and will be compensated at a specific pay
rate/salary. Therefore, if there is a substantial change in the employee’s job duties, salary, or
other conditions/terms of employment, the employer must file an amended H-1B petition to
address the change (s). If there is a change in an H-1B employee’s title with minor changes in job
duties, or if the employee receives what would be considered an average salary increase, an
amended petition will probably not be necessary. Minor changes can be addressed at the time the
employee’s H-1B authorization is extended. Note: It is imperative that the sponsoring
department notify the Department of Human Resources whenever a change in the
terms/conditions of H-1B employment is contemplated. Notification can be accomplished via
the Determination of Necessity for H-1B Amended Petition form.

Termination of employment

When an H-1B employment relationship is terminated (by either the employee or the employer),
the H-1B employee technically falls “out of status” at that time. In some cases, if the H-1B is
able to find sponsorship through another employer relatively quickly, the USCIS will “reinstate”
H-1B status and approve a petition filed by the new employer. However, there is no guarantee
that the employee’s status will be reinstated – this is determined on a case by case basis at the
discretion of the USCIS officer.



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If an H-1B employee is terminated, for any reason, before the end of the validity period included
in the H-1B petition, the employer must pay the cost of the employee’s transportation back to the
home country. This is normally not an issue. Individuals in H1-B status are eager to remain in
the U.S. and will likely search for H-1B employment elsewhere. If an H-1B voluntarily
terminates his/her employment, the employer is not liable for paying the cost of transportation to
the home country. Since there is no “grace period” for individuals under H-1B status, an H-1B
should depart the United States immediately upon termination unless he/she has obtained
sponsorship through another employer, or is receiving guidance and instruction from a qualified
immigration attorney.

Travel in H-1B status

An H-1B employee who plans to depart the U.S. and wants to return at a later date must have a
valid H-1B visa and a valid passport. An employee who entered the U.S. under an H-1B
classification should already have an H-1B visa stamp in his/her passport and should check to
make sure that it is still valid. If the visa has expired, the employee must obtain a new visa from
a U.S. consulate in order to reenter the United States. It is possible for an H-1B employee to
obtain the new visa at a U.S. consulate outside of his/her home country, but ideally, the employee
will return to his/her home country and apply for the new visa at the consulate that issued the
initial visa.

An individual who changed to the H-1B classification from another nonimmigrant status (F-1,
J-1, etc.) while in the United States is classified H-1B, but does not have an H-1B visa. If the
individual departs the U.S., he/she must obtain an H-1B visa at a U.S. consulate in order to
reenter the U.S.

Exception to visa requirement: Individuals in H-1B status who have an expired visa can travel to
Canada or Mexico for a period of 30 days or less and reenter the United States without obtaining
a new visa. This procedure is referred to as “automatic extension of validity” and is restricted to
travel in these countries only.

Travel while change of status to H-1B is pending

While in the U.S., individuals often apply to the USCIS for a change of status to the H-1B
classification from another nonimmigrant classification (J-1, F-1, etc.). If an individual who has
made application for a change of status to H-1B departs the U.S. during the time that the request
is pending, he/she is considered to have abandoned the change of status request. Under these
circumstances, only the change of status request is affected by travel; therefore, the USCIS will
likely deny the change of status, but will normally approve the H-1B petition. In order to return
to the U.S. in H-1B status, the H-1B applicant must apply for an H-1B visa at a U.S. consulate.

Travel while extension of stay is pending

It is often necessary for an H-1B employee to depart the U.S. after applying for an extension of
his/her H-1B authorization. Unlike travel while a change of status is pending, travel while an H-B
extension of stay is pending is not viewed as abandonment of the extension request. However, if
the employee’s current H-1B authorization expires before the extension request is approved,
he/she will have to stay abroad and wait for the extension to be approved in order to be
readmitted to the U.S. It is important to note that an H-1B employee must be present in the
United States when an extension request is filed, otherwise the extension will be denied.



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Dependents of H-1B employees

Spouses and unmarried children (under 21 years of age) of H-1B employees are assigned the H-4
(dependent) classification. Dependents are able to obtain H-4 visas when entering the United
States with the H-1B employee, based on the H-1B’s approval. Dependents who plan to enter the
U.S. separately from the H-1B employee must present the H-1B employee’s original Form I-797
approval notice along with other required documentation to the U.S. consulate/embassy in order
to obtain H-4 visas. An H-4 dependent remains in valid nonimmigrant status as long as the H-1B
employee is in valid status. H-4 dependents are prohibited from working in the United States;
however, they are allowed to engage in full or part-time study.




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