Sponsorship of H-1B Visas
The H-1B Temporary Worker visa allows foreign nationals to work in the United States in specialty occupations for a period of up to six years. Each application can be made for a period up to 3 years, and must be filed by the employer (i.e. the University). The individual cannot gain an H-1B visa on his or her own. The University must obtain process (i.e. prevailing wage and labor condition application) certification from the U.S. Department of Labor (DOL) and employment authorization approval from the United States Citizenship and Immigration Service (USCIS). For purposes of employment, the hiring department has the burden to meet federal requirements to sponsor and apply for H-1B status on behalf of a foreign national visitor.
Due to the complexity of the requirements for H-1B status, the hiring department must comply with the provisions of employment and sponsorship as governed by the Foreign National Employment Policy and all other applicable University policies. In addition, the sponsoring department must follow the procedural guidelines for H-1B sponsorship. The Student and Foreign National Employment Manager will work directly with the sponsoring department, not the applicant, in obtaining and processing the required application documents for H-1B status at the University.
Important Note: An H-1B employee cannot work for, receive monetary payment/compensation, or expense reimbursement from any employer, agency or organization outside of the University upon receipt approval of the H-petition (Form I-797) from USCIS.
The hiring department can petition for H-1B visa status for academic positions that satisfy the required degree level in the area of specialization (position) as defined by the University. The offer of employment must be discussed with the College or School Dean to clarify the University's responsibilities of sponsorship, funding liability and terms of employment to ensure compliance with University policies and the USCIS regulations. H-1B employment status is required for an appointment of tenure-track, and the University reserves the right to determine Permanent Residency sponsorship.
The initial offer of employment must be for no less than one calendar year and no more than three calendar years. The University will not submit an initial application for H-1B for less than a one year term. An extension of status may be for less than one year, but not less than 6 months, with sufficient justification and the approval from the Provost. H-1B tenure track appointment offers should be consistent with the guidelines stipulated in the University policy. Thus, the sponsoring department cannot offer appointments and/or request to petition for employment authorization for a term (contract) longer than granted to the employee.
The required educational credentials from the prospective H-1B employee must satisfy the educational (academic) qualifications and credentials as required (not preferred) for the position. If the H-1B employee has credentials in a language other than English, it is the H-1B employee’s responsibility to provide an official evaluation of the document in question from an accredited U.S. credential evaluation agency. The employee is solely responsible for the cost of the evaluation.
Cost of Visa
All costs associated with the H-1B petition are to be paid by the sponsoring University department. Personal funds cannot be accepted from the beneficiary or any University employee, and checks must be drawn from active University accounts. Application/petition fees are under the administration of USCIS and subject to change at any time.
PREMIUM PROCESSING is an optional fee which allows employers the opportunity to process and receive an adjudicated decision (approval, additional information needed, denial) within a 15 day period from receipt of H-1B applications as an expedited service. The expedited service only promises a response to the petition within 15 days, not an approval. If for some reason the USCIS decides that additional information is required, a “request for evidence” (RFE) may be the response. Approval is not guaranteed within 15 days – just a response. If an RFE is requested, the hiring department will be notified and the 15-day clock will start again when USCIS receives the requested additional evidence.
Premium processing is not a mechanism for expediting the Prevailing Wage Request or Labor Condition Application through the Department of Labor, which does not offer an expedited processing service. The USCIS will not allow employers to begin the employment of foreign national visitors without first having the proper employment authorization documents verifying eligibility. If the hiring department wishes to employ a foreign national visitor who has limited or no legal documentation to begin employment prior to the six months or so required for regular application processing time, the department should consider the premium processing option.
It is highly recommended that the department consider the Division of Human Resources processing timeline when requesting an academic appointment and completing the foreign national’s request forms. The department must complete the necessary request forms. The forms must be submitted to the Student and Foreign National Employment Manager in the Division of Human Resources with all supporting documentation at least six months prior to the anticipated start of employment. The Student and Foreign National Employment Manager must receive all required documentation before processing can commence - no exceptions.
The Division of Human Resources requires a minimum of 60 days for internal processing of the departmental H-1B application request (internal timelines may change without notice depending on volume of requests, incomplete request forms/information, uncontrolled outside agency processing/responses, etc).
Liability for Transportation Costs
If a foreign national employee's employment ends involuntarily prior to the end of the approved H-1B work authorization, the USCIS requires the University to provide reasonable cost of return transportation to the last place of foreign residence. If the H-1B employee does not intend to return to his or her home country or last place of residence, then the University is not required to provide means of reasonable transportation. The University holds no liability if the H-1B employee voluntarily terminates his or her employment prior to the expiration of the validity of the approved petition.
Criminal Background Investigation Check
In the case of H-1B petition sponsorship for employment authorization, complete clearance of the criminal background investigation check will be required prior to initiating an employment-based petition. The hiring department should include this process in their timeline when establishing the employee’s first day of work.
Requesting H-1B Sponsorship
Submission of a request for H-1B Employment Sponsorship to U.S. Citizenship and Immigration Services (USCIS) is a complex, and at times lengthy, multi-step process. As a result, sponsoring departments should consider internal processing time when determining a sponsored employee's employment date. In some cases, the internal processing timeline can take lesser or longer than the period stated to process the required documentation after review and receipt of all paperwork submitted by the hiring / sponsoring department (REVISE SENTENCE).
Once the hiring department determines that the selected candidate is a foreign national non-immigrant requiring sponsorship for employment authorization or transition of H-1B employment authorization under the University, the the following steps must be taken to initiate the H-1B process:
- Complete the Criminal Conviction Check process and receive full clearance for hiring;
- Complete and submit the Offer of Employment to the foreign national visitor, requesting a written acceptance to the employment offer;
- Complete and submit the Export Control Form to the Student and Foreign National Employment Manager in the Division of Human Resources (Important Note: This process must be completed and cleared for employment on behalf of the foreign national visitor before any actions or signatures are acquired relative to the H-1B sponsorship process.);
Upon clearance of the Export Control process through the University Compliance Officer in the Division of Research and Economic Development, the Student and Foreign National Employment Manager will provide the H-1B Request Packet to the sponsoring department for completion and acquisition of signature approval for sponsorship. The department must return the completed H-1B Request Packet, including all supporting documentation and the H-1B Beneficiary packet, to the Student and Foreign National Employment Manager, who will obtain the approval signature of the Provost and Vice Chancellor for Academic Affairs upon confirmation of eligibility to file for H-1B employment. Any issues identified by the Student and Foreign National Employment Manager during this review must be resolved prior to the start of the H-1B process.
One the H-1B process is initiated, all subsequent processing actions are contingent upon federal processing timelines through the Department of Labor (DoL) and USCIS. Periodic updates will be provided to the sponsoring department from the Student and Foreign National Employment Manager. Upon receipt of the official Notice of Action, Form I-797 from USCIS confirming approval for employment authorization under the University, the sponsoring department may submit the required new hire documentation with an established first day of work
It is strongly recommended that the requestor, the Chair and the Dean of the sponsoring department review the full section for H-1B Employment in the Foreign National Employment Policy to clearly understand the federal guidelines for sponsorship and contributing factors that dictate the timeline for application submission to USCIS.