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H-1B Employment at USC for Foreign Nationals

H-1B Employment at USC for Foreign Nationals. Faculty/Staff Visa Services The University of Southern California. Introduction.

kareem-wright
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H-1B Employment at USC for Foreign Nationals

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  1. H-1B Employment at USC for Foreign Nationals Faculty/Staff Visa Services The University of Southern California

  2. Introduction Employment-based immigration to the U.S. can be difficult to understand in depth. H-1B status is governed by several layers of regulation, and involves many players – you, your hiring department, FSVS, and several government agencies. We have designed this presentation to demystify some of the “hows” and “whys” of H-1B processing at USC. We hope that after reading it you can feel comfortable with the process, and be better informed as processing landmarks are reached.

  3. What is the difference between a “Visa” and Nonimmigrant “Status”? • When we say “Visa” we mean the actual visa stamp laminated into the passport. • A “Nonimmigrant” is someone who is in the U.S. temporarily, who is not a legal permanent resident, and who generally plans to return to their home country at the end of their stay. • When we talk about “Status” we mean the conditions under which the individual is present in the U.S. • EXAMPLE: a nonimmigrant can enter on an F-1 student visa, complete their studies and change to another status, such as H-1B, without ever leaving the U.S. and obtaining an H-1B visa stamp.

  4. WHAT IS H-1B STATUS? Congress created the H-1B category so that a U.S. employer could hire a foreign national (FN) degreed professional in a specialty occupation (often in new technologies) without compromising the U.S. workforce. Hence, both the job and the person must qualify as H-1B eligible. USC, as sponsoring employer, must petition the U.S. Citizenship and Immigration Services (USCIS), a division of the U.S. Department of Homeland Security, for each H-1B we employ.

  5. What is an H-1B: How long does H-1B status last? • A person can be in the U.S. on an H-1B for up to 6 years, in increments of up to 3 years per request. • This is not a lifetime allotment: To qualify for a second 6 year period, the FN must depart the U.S. and contiguous countries (Canada and Mexico) for a full 365 days. • In some circumstances an H-1B can be extended beyond the 6th year, where a permanent residence filing step is taken before the person’s 5th year anniversary in H-1B status.

  6. What is H-1B status: Is H-1B employment restricted? • Yes. H-1B employment is specific to: • Employer • Title • Duties • Salary • Location • BUT – one FN can have multiple H-1B employers, as long as each petitions properly and maintains proper compliance. For this reason, interdepartmental transfers within USC or even internal promotions within a department require planning with FSVS when an H-1B employee is concerned. To avoid violations, an “Amendment” may be required.

  7. H-1B Case Types • There are many complex underpinnings to H-1B regulations. Hence, each situation in which an H-1B request arises must be assessed to identify what type of case it is:

  8. H-1B Case Type 1: Initial H-1B: Consular Processing • Available where the FN (foreign national) is outside the U.S. and will wait abroad for H-1B approval. • Once approved, the FN makes an appointment at a U.S. Consulate to have a visa stamp processed in his passport and enter the U.S. in H-1B status. Typical Case: Professor Grande is a Spanish Economist who is working for an institute in Switzerland. He needs to wrap up work there before coming to teach at USC in fall. Solution: Applying for Consular Processing will allow him to process a new H-1B visa stamp and make travel plans once everything is approved.

  9. H-1B Case Type 2: Initial H-1B: Change of Status • Requested where the FN is already in the U.S. in another valid, legal staus such as F-1, J-1, TN, etc., AND they are not in a position to leave the U.S. and wait abroad for H-1B approval. (Note that if FN entered on a B or visa waiver, there are restrictions on changing status). • FSVS must receive request from hiring department far enough in advance to allow for approval before current status expires. • Once approved, the person can go on USC payroll without needing to exit the U.S. Typical Case: Reza is an F-1 foreign student from Iran, who just graduated with a PhD in Computer Engineering. The School of Education would like to hire him on to support their research operations. His post-completion OPT period will run out in a few months, but since he is from Iran sending him out of the country will cause complications for him and the hiring department. Solution: As long as Reza is in valid F-1 status, that status can be changed to H-1B.

  10. H-1B Case Types 3-4: Extending and/or Amending • Depending on the circumstances, USC can extend until you have been in the U.S. in H-1B status for 6 years. • If the conditions of your employment change – your hours, salary, duties, location or title – USC must file a new petition. At the same time, we can extend. • To extend USC sponsorship of H-1B status, please contact the responsible department administrator 7 to 6 months prior to your expiration to start the ball rolling. The earlier the process starts, the fewer issues will arise. • USC will file before your current H-1B expires. This will trigger what is known as the “240 day rule” for H’s: As long as the extension petition is received by the USCIS before the current expiration, the person is given 240 days of “grace” to remain living and working in the U.S. while it is pending.

  11. H-1B Case Types 3-4: H-1B Extensions and Traveling • Regardless of type of H-1B extension, FSVS strongly cautions against the FN traveling outside the U.S. while it is pending. • FSVS cannot guarantee that traveling while an H-1B extension is pending will not result in complications and delays, even if the FN has a valid H-1B visa stamp. Complications/delays can arise at: • Port of entry: because the officer will see a pending extension in the system and won't necessarily know how to deal with it, OR  • CIS service center: because the officer adjudicating the case can see in the system that the FN has left the country, but might not be able to see when, and can issue an RFE (request for evidence), or otherwise create complications.

  12. H-1B Case Type 3: H-1B Extension: Simple • Requested where the department simply wants to extend the H-1B employment for an additional period. • Extension requests should be made as early as possible – as much as 6 months in advance – and must be received by the USCIS before the person expires. • Once the USCIS receives the extension petition, the person has 240 days of authorization to remain in the U.S. and on USC’s payroll. Typical Case: Mei has been a Research Associate in H-1B status with USC for 3 years. The department now wants to keep her on for another 3 year period. Solution: Apply for a simple extension before her current H-1B expires.

  13. H-1B Case Type 4: H-1B Extension: Amendment • Requested where the person is already working at USC, but is moving to a different job. • Not all job movement within USC will need an amendment petition: it depends on how much change there is according to different factors that FSVS will assess. The best course is for the department to contact FSVS immediately. • Once the USCIS receives the amended petition, the person can take up the new job – but not before. Typical Case: Mei has been a Research Associate in H-1B status with USC for 3 years in Biomedical Engineering. However, now the Radiology Department at Keck has made her an offer for a better position with more pay. Solution: Mei can accept the offer, but the new hiring department must request an amendment/extension before she can take up the new position.

  14. H-1B Case Type 5: Concurrent H-1B Employment • Requested where the individual is already working for another H-1B employer and will be working for USC as well. • Once the USCIS receives the petition, the person can go on on USC’s payroll. Typical Case: Marianne has been a Senior Analyst with a top financial firm for two years in H-1B status. She would now like to take up an offer from USC to work on a special project for the university administration in her spare time. Solution: USC can file for concurrent employment. She can start as soon as the USCIS receives the petition.

  15. H-1B Case Type 6: Change of Employer • Requested where the individual is leaving their current H-1B employer to work for USC instead. • Timing and coordination are critical, since USC’s petition must be received by the USCIS before the person leaves their current job. • Once the USCIS receives the petition, the person can go on USC’s payroll. Typical Situation: Marianne has been a top Senior Analyst with a top financial firm for two years in H-1B status. She would now like to take up an offer from USC to work as a Financial Analyst, full time. Solution: As long as she can stay with her firm until USC can file a petition for her, ad she cans tart as soon as USCIS receives it.

  16. Special Issues: H-4 Dependents • The dependent status available to an H-1B individual’s spouse and children is H-4. • If they are already in the U.S., then they can change or extend H-4 status along with the main H-1B employee. • If they are outside the U.S. with the principal H-1B holder, they can obtain H-4 status by processing an H-4 visa stamp directly at a U.S. Consulate abroad. • While H-4 dependents can live and study in the U.S., they cannot work. • H-4 Spouses who wish to work may seek their own H-1B sponsorship.

  17. HOW DOES THE PROCESS BEGIN? • Once an FN emerges as the top candidate for a job at USC, the hiring unit contacts FSVS to discuss strategy and get materials. • The hiring department administrator then gathers the required information at the department level and from the FN, and submits the request to FSVS. • As processing milestones are reached, FSVS communicates with the the hiring department administrator. He/She then communicates with the FN as appropriate.

  18. Timing an H-1B Request: General Principles • Estimating timing isn’t always as easy as it seems: Many factors need to be taken into account: • Was the packet complete when submitted? • Incomplete packets are the #1 cause of delay! • What type of H-1B case type is it? • Different cases present different factors. • Is the FSVS processing queue full? • Heaviest times of year are May-August and November-December. • What is the person’s situation? • Do they have a current visa running out? • Do they have travel plans that need to be accommodated? • Because of timing or an immigration issue does the person have to leave the U.S.? NOTE: Because processing is complex, and involves FSVS, the USDOL and USCIS, it is only possible for FSVS to give a “best estimate” and NOT a promised date.

  19. Timing an H-1B request: Estimating processing by case type • *Average processing times measured from complete submission to FSVS to delivery of document. Individual cases will vary. • **Note that while only the receipt is required for payroll in these cases, if the FN wishes to travel s/he may need the actual approval notice – especially where the current visa is expiring. Where the FN wishes to travel during processing it is VERY IMPORTANT to indicate this in the space provided on the prep questionnaires, since FSVS will need to strategize accordingly.

  20. Preparing the Request: Employee Questionnaire • Provides FSVS with important information regarding your immigration, education and work histories. • PLEASE BE COMPLETE IN ALL ANSWERS! Spell out acronyms – don’t assume we will know what you are referring to. Try to put something in each field, even if its simply “0” or “n/a”, so that we know nothing was skipped.

  21. Required Materials: Education Documentation • Since the regulatory prerequisite is that an H-1B job require a degree in a specific field, and the individual must possess it, we are required to submit documentation that you hold the required degree. • If the required degree was issued by a U.S. institution: FSVS just needs the diploma and/or transcript showing relevant details. • If the required degree was issued by a foreign institution: FSVS will need a degree evaluation from a 3rd party evaluator. This is true even if the degree was obtained in an English-speaking country such as Canada or Australia. • If you have not yet completed the required degree: Then we will have to wait to submit until the degree is completed (i.e. until the institution’s registrar will issue a transcript showing completion).

  22. Required Materials: Immigration Documents: I-94 • Required Immigration documents will include: • I-94 Entry Card: This is the small white card stapled into the person’s passport when they enter the U.S. We need clear copies of both the front and back.

  23. Required Materials: Immigration Documents: Visa • By “Visa” we mean the visa stamp laminated by a U.S. Consulate abroad into the passport:

  24. Required Materials: Immigration Documents: Passport • We will also need a copy of the person’s Passport Biographic Information Page:

  25. Required Materials: Immigration Documents: Prior Approvals • Not everyone will have them – mostly found in cases where the person has already held H-1B status.

  26. What to Expect During Processing • The basic H-1B processing routine coordinated between FSVS and the hiring department: • Dept. Administrator sends prep packet to FSVS. If on review it is complete and without issues, FSVS begins processing. • It takes FSVS 4-6 weeks on average to draft and finalize the petition. If issues arise FSVS will contact the designated Dept. Administrator. • Once the Petition is submitted, FSVS alerts Dept. Administrator. • Once FSVS hears from USCIS, Dept. Administrator is contacted. • When approval arrives, FSVS preps approval packet for Dept. Administrator to pick up.

  27. Once USCIS approves the petition • Once the USCIS issues an approval, it is sent to FSVS via U.S. Post. • In some urgent circumstances we have tried enclosing a self addressed pre-paid Fedex slip to speed return of the approval, but with mixed results. In our experience, this procedure can’t be relied on. • FSVS will prepare an approval packet including: • Instructions for the department administrator. • Instructions for the FN. • The original approval notice. • A full copy of USC’s petition, including the LCA, for the FN. • The administrator picks up the packet as instructed: • The original approval notice is effectively IRREPLACEABLE, so a receipt must be signed by the administrator. • Because of problems/confusion in the past, we insist that the administrator and not the FN pick up the approval notice.

  28. H-1B Status Documents • Passport & Visa: You must maintain a valid passport at all times. Your visa stamp is the colored official paper with your photo pasted into your passport. It is alright if your visa stamp expires while you are in the U.S., however, you will need a new one to re-enter the U.S. in valid H-1B status after foreign travel. • I-94 Entry Card: This white card is issued at the point you enter the U.S. DO NOT DISCARD! It is your only proof that you entered the U.S. legally.

  29. …more H-1B Status Documents • I-797 Approval Notice: This original approval notice will be forwarded to you along with a copy of your petition and LCA so that you have proper documentation with which to process a visa to enter the U.S. NOTE: Some I-797 approval notices will have a new I-94 card as a tear-off section on the bottom. This supersedes the I-94 card you received upon arrival, however it is VERY IMPORTANT that you do not discard the I-94 card you received at entry. It is your only proof that you entered the U.S. legally.

  30. Proof of your H-1B Status • Three documents - your passport, visa stamp and I-94 card – when presented TOGETHER prove that you entered the U.S. legally and are in legal H-1B status. Copies of all three should be carried with you at all times. • These documents should be kept together in a safe place. • You should also make copies of all documentation for your permanent records, since they may be needed many years in the future.

  31. Termination of H-1B Employment • Unlike for F-1 Student or J-1 Exchange Visitor status, there is NO GRACE PERIOD for H-1B’s when their job ends, whether through termination or resignation. • If you resign or are terminated, your H-1B status ends on the last day of actual work (vacation/sick day payouts don’t prolong this). • Where the employer terminates, they must offer a one-way plane ticket to the FN’s last place of residence (but not moving costs or transportation for dependents). If the FN resigns, this is not available.

  32. As an H-1B, what are my responsibilities and limitations? • Each H-1B individual is responsible for : • Making sure status is properly maintained, including during periods of transition such as job changes. • Making sure that status documents (or copies) are available at all times. • Maintaining a file at home of all related documentation for current and past status. • H-1B limitations include: • Lack of career flexibility: every time a job changes or a promotion occurs, a new petition must be filed before it can be implemented. • Lack of travel flexibility: Initial H-1B visa stamp processing at a U.S. Consulate can be lengthy. Some nationalities have a restricted number of entries. • Temporary by nature: H-1B status is not “permanent”, it is by nature temporary and limited to the 6 years.

  33. When to contact FSVS FSVS is a small team of three, handling matters for nearly a thousand foreign nationals. Out of necessity, and especially during busy times, we respond to inquiries by priority according to our knowledge of each situation. Hence, we can’t necessarily get back to people as quickly as we would like. To save time, we highly recommend that you review the FSVS website and materials and confer with your hiring department administrator before contacting us. He or she may already have the answers to your questions.

  34. Contacting FSVS • Email: fsvs@usc.edu • Mail: OIS/FSVS, STU 300 University Park Los Angeles, CA 90089-0899 • Phone: 213-740-2666 • Fax: 213-740-5194 • Website: http://sait.usc.edu/fsvs/index.html

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