H-1B1
H-1B, or Temporary Worker, nonimmigrant status may be granted to a non-U.S. resident who has been offered a professional-level position in the United States.
General Information
H-1B or Temporary Worker status is appropriate when a non-U.S. resident is employed in a professional position by North Carolina A&T State University. (Note: Although the permission to stay in the U.S. and employment authorization granted by the United States Citizenship and Immigration Service (USCIS) to a person with H-1B status is temporary, the actual position filled by the employee may be a permanent one.)
Who May Qualify
An individual with specialized skills may apply for temporary employment in the United States if an employer sponsors him or her to fill a vacant position. Some occupations that are categorized as specialized include accountant, engineer, computer programmer, system analyst, architect, or lawyer. In most cases, the minimum qualifications for these occupations include a four-year college degree.
Requesting an H-1B Petition
An individual may not self-petition for H-1B status. An applicant’s prospective employer must initiate the process. When applying for H-1B visa status, North Carolina A&T must establish that the foreign national will be working temporarily at the University in a specialized occupation. The H-1B application process can be time consuming. The International Students and Scholars Office (ISSO) will complete the H-1B petition and submit it to the Immigration Office as the office representing North Carolina A&T State University.
Before a person can be granted H-1B status, the employer must file an H-1B petition with the USCIS. There are a number of requirements that must be fulfilled before this petition can be filed. They are as follows:
-
The hiring department compiles and submits all paperwork. (i.e. position, department and applicant information)
-
Prevailing Wage Request Form faxed to North Carolina State Department of Employment Security Commission (NCDoESC). (ISSO will process)
-
Upon response from NCDoESC to the ISSO. ISSO reviews information and sends LCA to the United States Department of Labor (DOL). (ISSO will process)
-
Once the DOL approves and returns the LCA, the H-1B application materials are sent to USCIS.
-
When case is approved by USCIS, notification is sent to the ISSO and ISSO then notifies the applicant and department of approval.
All required parties must sign the request form. It is important to have a clear understanding of the requirements and liabilities related to an H-1B petition before signing a request form; information concerning these requirements is given below. If there are any questions or concerns about H-1B status or the application procedure, please contact the International Students and Scholars Office at 334-7551 before submitting the request form.
Specific Requirements for H-1B Employment
Before an H-1B petition can be filed, the ISSO must file a “Labor Condition Attestation” (LCA) with the U.S. Department of Labor (DOL). In the LCA, the employer must make the following four attestations:
-
The H-1B employee will be paid the “actual wage” for the place of employment (e.g. A&T) or the “prevailing wage” for the geographic area, whichever is greater.
-
The employment of an H-1B worker will not “adversely affect” the working conditions of other, similarly employed persons at the place of employment.
-
There is no current strike or lockout at the place of employment.
-
A notice of the filing of the LCA has been posted in at least two conspicuous locations at the place of employment.
Although no additional documentation needs to be filed with the LCA itself, the employer is required to maintain substantial, detailed documentation. This documentation must be available for USCIS inspection by any interested party. The required documentation will be kept in the ISSO.
Processing Time
Because of the multiple steps, and the multiple government agencies involved, we can not guarantee that the H-1B petition will be approved for any specific date. We can however, provide estimates of the timing involved, based on current trends. We recommend that the application be made as far in advance of the proposed start date as permitted by law. H-1B petition can be filed up to six (6) months in advance of a proposed H-1B start date.
Required: Normally 6 to 8 weeks; for those filing using the Premium Processing option allow a minimum of 30 days for interoffice processing by the International Students and Scholars Office.
Actual Wage
The employee will be considered to be making the “actual wage” if he/she will receive at least as much as other similarly employed and similarly qualified employees in the same department. If others are not all paid exactly the same amount, the salary of the H-1B worker must be within the range of the others.
The Prevailing Wage
The “prevailing wage” will be the average wages of persons similarly employed in the same geographic area as determined by the NCDoESC. [Note: DOL law allows the use of other, reliable, wage surveys, if available, in place of a prevailing wage determination by the State Employment Security Agency (SESA).] If it is discovered that the H-1B employee will not be paid at least the “actual wage” or “prevailing wage”, the University will not be able to file an LCA or an H-1B petition, and therefore the person may not be employed.
Because the petition, the LCA and the back-up documentation must give the employee’s position, title and salary, it is vitally important that the information provided with the H-1B request be exactly correct. Submitting inaccurate information with either an LCA or an H-1B petition can result in severe penalties for the employer. Although it appears that a salary increase would not violate the H-1B regulations A&T may not make any other substantial change in the employee’s duties, dates of employment, title, salary, or location of employment until we have submitted an amendment of H-1B petition specifications to USCIS.
Time Limit
The maximum period of time for a person to hold H-1B status is six (6) years. This includes time spent with previous employers, unless the person has been outside the U.S. for one year before coming to A&T. Each H-1B petition may be filed for up to three years. The minimum time period a hiring department can request initial employment for an H-1B petition is ONE YEAR.
Documentation
Before an H-1B employee can be employed, the following documentation is required (unless the employee has some other status which permits employment):
1. USCIS approval of a petition for a specific position at NCA&TSU. (Form I-797) (A petition approval for another employer or a different A&T position is not valid.)
2. I-94 showing valid (unexpired) H-1B status.
Additional Employment
USCIS approval of a petition from NCA&T ONLY authorizes employment at this University. If the employee wishes to accept employment outside A&T, USCIS must approve a petition filed by another employer. This includes consulting or other free-lance work as an independent contractor.
Return Ticket Home if Employment is Terminated
U.S. Immigration law also requires the employer to be responsible for the employee’s return travel expenses to his/her home country if employment is terminated before the end of the H-1B petition period. This expense would be the responsibility of the hiring department. For this reason, we suggest that a department request an H-1B petition only for a period of time for which funding is reasonably secure. If continued funding is obtained, then the University may request an extension of the H-1B petition.
REMINDER, ALL H-1B PETITIONS SHOULD BE PROCESSED THROUGH THE ISSO.
