Disclaimation:
This is just information to share with you and let you know what is going on in H1B application. It is not for DIY purpose. Please consult your employer or your lawyer (if any) if you have any questions for your particular case.
Good luck to everyone. Happy Chinese New Year!!!
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H-1B VISA APPICATION
What is an H-1B?
The H-1B is a nonimmigrant classification used by an alien who will be employed temporarily in a specialty occupation.
What is a specialty occupation?
A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.
Is an individual qualified for H-1B status?
An individual is qualified through the appropriate degree, or through a combination of education and experience equivalent to that degree. Please note that individuals on J-1 status with a two year home country residency requirement cannot change to H-1B status unless a waiver of this requirement is obtained.
What is an H-1B petition process?
H-1B status requires a sponsoring U.S. employer. The employer must file a labor condition application (LCA) with the Department of Labor attesting to several items, including payment of prevailing wages for the position, and the working conditions offered. The prevailing wage is based on the job duties and minimum education/experience requirements and is obtained through your State Department of Labor. The employer must then file the certified LCA with a Form I-129 petition.
What are the applicable fees and processing times?
1. The filing fees are: $190.00 for Regular Processing or $1,190.00, if Premium Processing is requested. These filing fees may be paid either by the employer or employee or a third party in a form of a check.
2. Additionally, an employer issued check of $500 (Government-imposed ANTI-FRAUD fee) must accompany all initial and transfer H-1B applications. All checks should be made payable to U.S.C.I.S.. The filing fees and the Anti-Fraud fee checks must be delivered to the office of International Personnel together with the Application.
3. There is also a certain amount ($) di*****ursement fee payable to “your prospective employer” that applies to all H-1B applicants except Postdoctoral Fellows (This policy varies with your employer).
The processing time at the United States Citizenship and Immigration Services may vary case by case. Generally, it takes 90-150 days to process a case by regular processing and 15 business days to process a case by Premium Processing. Please note there is a turn around time of about two weeks for all cases submitted to International Personnel for processing.
What is Labor Condition Application Compliance?
Pursuant to 20 CFR 655.731 all “your prospective employer” departments are obligated to pay the minimum of the prevailing wage determined by the Labor Department to a foreign national on a H1B visa status. There are severe penalties for the employers who are in violation of this law. “your prospective employer” by signing the form ETA 9035 agrees to comply with these regulations.
It is important to note that the wage paid to H-1B employees cannot be supplemented by a fellowship received by the candidate from an outside source or income from other sources. 100% of the wage must come from “your prospective employer” payroll.
When can an individual start his/her employment with “your prospective employer” ?
If an individual is outside the United States and/or a visa stamp is required through Consular Processing, an H-1B employee is precluded from starting employment with Sinai before H-1B visa stamp is issued by a U.S. Consulate and the individual arrives in U.S. to assume/resume the employment.
If an individual is already in the United States and/or a change of status has been requested, the immigration employment start date is the date of the validity on the H-1B approval notice.
If an individual is employed with another U.S. employer and wishes to transfer their H-1B visa status to “your prospective employer” , “your prospective employer” policy does NOT permit the transferring individual to begin employment until the H-1B transfer has been approved by USCIS.
In all H-1B cases, an individual is NOT permitted to start employment with “your prospective employer” until ALL mandatory screenings on Toxicology, Employee Physical, Health Information Portability and Accountability Act (HIPAA) Training, and New Beginnings Orientation are completed. Additionally, Form I-9 Employment Eligibility Verification and Tax and Treaty Benefits analysis must be completed before the start date.
Additionally, please be advised that moonlighting is prohibited on H-1B status.
Where to send the applications?
Each department is encouraged to send a completed and signed H-1B application with supporting documentation to our office 4-6 months before an employee’s anticipated start date.
“Contact Human resources of your prospective employer”
International Personnel office is striving to provide professional services to all departments of “your prospective employer” for their hiring needs.
Documentation Required to Process H-1B Petition
Applicant’s current CV/Resume.
All educational degrees, trans and diplomas, with certified English translations, and Evaluation (for foreign degree).
USMLE Step 1, 2 and 3, ECFMG and Limited License (for attending positions) for all clinical positions.
Licenses, certifications or permits to practice for positions requiring such documentation (e.g. Health Care Workers, Therapists).
Complete copy of all passports, including biographical information, all U.S. visa stamp pages, and pages with entry/exit stamps.
Copies of I-94 Form Arrival/Departure Record (front and back).
All prior I-797 Form (approval notices), IAP66/DS2019 (front and back), Employment Authorization Document (EAD), I-20 (all pages), etc.
Three most recent pay stubs from the current employer and previous year’s W-2 form (for transfer applicants).
Applicants currently dependent status (I.E. H-4, J-2, TD, F-2) must provide documents relating to the principle’s status, including passport, visa (H-1, J-1, TN, F-1), I-94, marriage certificate, birth certificate (for all children), pay stubs, I-20, DS2019/IAP66, and I-797 (approval notices).
List of family members (I.E. spouse and children) and immigration status
Please provide 8.5” X 11” Copies Only – we do not keep original documentation.
APPLICANT’S INFORMATION
DATE: ____________
Name :___________________________________________________________________
First Middle Last (CAP)
Date of Birth: _______________/_________/____________________________________
Mo. Day Year
All other names used: _______________________________________________________
Social Security Number: __________________Alien Registration Number: ______________
City and Country of Birth: _______________________
Country of Citizenship: __________________________
(If in U.S.) Date of last arrival in U.S. (Most Recent): _________________________________
I-94 Number: _________________________
Current Visa Status: ______________ Expiration Date: _______________________________
Passport Number: __________________ Date Passport Issued ________________
Date Passport Expires: ____________________
Current U.S. Address: _______________________________________________________________
If the applicant is outside the U.S. or a requested extension or change of status cannot be granted, give the U.S. consulate or port of entry you want to notify if this petition is approved (Please circle one):
Type of Office (check one): Consulate Pre-flight Inspection Port of Entry
Office Address (City) ___________________ U.S. State or Foreign Country:__________________
List the applicant’s and any dependant family members’ prior periods of stay in H (both H-1B and H4) classification in the U.S. for the last six years. Be sure to list only those periods in which the applicant and/or family members were actually in the U.S. in an H classification. NOTE: Submit photocopies of Forms I-94, I-797 and/or other USCIS issued documents noting these periods of stay.
Name (Last, First and Middle) Period of Stay (MM/DD/YYYY)
________________________________ From _______________ to ___________
________________________________ From _______________ to ___________
________________________________ From _______________ to ___________
Addresses:
Foreign Address (Required):
_______________________________________________________________________________
Email(s): _________________________________________________________________________
Home phone: ________________________ Work phone: _____________________ ___________
Fax : _____________________________ Cell Phone: __________________________________
Current Employer: _______________________________________________________________________________
Employer’s Address: _______________________________________________________________________________
Position with Current Employer: ____________________________________
Employer’s Phone: _____________________ Employer’s Fax: ________________________
Name of Contact Person: _______________________________________________________________________________
Do you have ANY Labor Certification, immigrant petition or application approved or pending?
YES_________ NO _________
If YES, please explain and provide us with copies of receipts.
H4 Application for Family Members
Please note that only a spouse and children under the age of 21 may be included – common-law spouses are not recognized by the Immigration Service)
If an applicant has any immediate family members in the U.S. at the time of filing the H-1 application for change or extension of status to H-4 status, family members are eligible for H4 dependent change of status/extension of status. Form I-539 has to be completed with a fee of $200 payable to the USCIS. Only one fee is required regardless of the number of family members included. Form I-539 should be signed by the H-4 spouse, or a dependent child (if only the child applies for H4 status).
There is also a certain amout of $ di*****ursement fee payable to “your prospective employer”. (This policy varies with your employer)
If H-4 derivatives are outside of the United States, they will have to obtain their H-4 visas (Canadian citizens will apply at the port of entry) from a US consulate of their home country and will need to complete Form DS-156 at the consulate. They will have to show proof of the approved H-1B status of the principal as well as the proof of relationship.
Documentation required from H-4 applicants:
Clear copies of each family member’s passport information including biographical information page, visa pages, front and back of I-94 form.
Marriage certificate and birth certificate of all family members,
I-797 approval notices of any non-immigrant or immigrant status of each family member.
Please note that H-4 dependents are not permitted to work in the United States.
Family Information:
Last Name First Name Date of Birth Country of Citizenship Applying for H-4?
_________________ ________________ _____________________________ _________
_________________ _________________ _____________________________ _________
Additional information on family members:
Social Security Number: ____________ A#: _____________________________________
Date of Last Arrival:______________ I-94 Number:_____________________________
Current nonimmigrant Status:________ Expiration Date: __________________________
Country where passport issued: ________Validity Date (mm/dd/yyyy): ____________
Address Overseas: _______________________________________________________________________________
**If you or any family member have applied for an immigrant visa, please provide copies of immigrant petition receipt notices for (I-140 and I-485), copies of Employment Authorization Card, and copies of Advance Parole.
H-1B APPLICATION FORM TO BE COMPLETED BY THE DEPARTMENT
Please check appropriate box:
o New H-1B (Applicant overseas or requesting Consular Processing)
o Transfer from another institution and already have H-1B
o Extension of H-1 with “your prospective employer”
o Change of status to H-1B (Applicant in US on a different non-immigrant status).
o Amendment to current H-1B
Prospective/Current Employee Name:
Last (CAPS)__________________________
First Name_________________________ Middle Name: ______________________________
What is the Minimum educational degree required for this position?
_______________________________________________________________________
What is the Minimum work experience required to be considered for this position?
___________________________________________________________________ years
Position Title held/to be held at organization: _______________________________________
Jobsite location (address) ________________________________________________________
Duration of intended employment**: (Note: H-1 visas are valid for a maximum of 6 years and are issued in 3 year increments.) **If this is an H-1 transfer, the H-1 must be approved before the employee is authorized to begin working at “your prospective employer”
Anticipated Start Date ofH-1B: _____________________
Anticipated end date of H-1B________________________
Salary offered: $_________________per year; or,
If part time, number of hours per week: _____________ Hourly Wage: ___________
Note: Department must pay 100% of the above salary and cannot be supplemented by outside income sources.
Payroll System:
** Please attach a detailed job deion for the position offered.
DEPARTMENT: _______________________Phone #: _______________Fax_______________
Name of Department Head:__________________________ Phone #: _________________
Name of Employee’s Supervisor/Manager:____________ Phone #: __________________
Department Administrator: ______________________ Phone #: ___________________
Contact Person: ______________________________ Phone # _______________________
Fax Number: _______________ Email Address: ____________________________________
Certifications and Attestations by the Department.
The Department of Labor (DOL) has established a process for handling complaints concerning failure to meet the conditions of Labor Condition Application or of making misrepresentations. Sanctions include back pay, civil fines, and disqualification from USCIS approval of employment-based nonimmigrant or immigrant petitions. These sanctions have been increased by the American Competitiveness and Workforce Improvements Act of 1998 (ACWIA) and the implementing regulations.
Penalties for LCA violations:
$35,000 fine and three-year prohibition for willful failure to meet an attestation condition, or willful misrepresentation of a material fact on an LCA, in the course of which failure or misrepresentation, a U.S. worker is displaced during the 90 days before filing the application through the 90 days after filing the petition.
$5,000 fine and two-year prohibition from filing nonimmigrant and immigrant petitions for willful failure to meet any attestation, or willful misrepresentation of material fact in the LCA.
$1,000 fine and one-year prohibition from filing nonimmigrant and immigrant visa petitions for failure to meet strike or layoff attestation; substantial failure to meet working-condition attestation or displacement attestation, posting or recruitment attestations, or misrepresentation of material fact in LCA.
In addition to fines and prohibition, willful violators may be randomly investigated for five years.
Additional violations for which penalties may be imposed.
Protected by the ‘whistle blower’ provision are employees, former employees, and applicants who cooperate in a proceeding or investigation concerning the employer’s compliance with LCA requirements. The employer violates the whistle blower provision by intimidating, threatening, restraining, coercing, blacklisting, discharging or in any other manner discriminating against a whistle blower. Violators of the whistle blower provisions may be fined up to $5,000 and prohibited from filing petitions for two years.
A new penalty applies when the employer requires the H-1B nonimmigrant to pay a penalty to the employer for leaving the job prior to a contracted date. The employer may be fined $1,000 for requiring an H-1B worker to pay such a penalty, and may be required to return the amount paid to the H-1B nonimmigrant unless the amount is purely liquidated damages.
An employer is in violation of the LCA requirement for placing an H-1B nonimmigrant in unpaid nonproductive status due to a decision by the employer based upon factors such as lack of work or due to the H-1B nonimmigrant’s lack of a permit or license. A violation will be found for failure to pay full-time wages to a full-time employee, failure to pay a part-time employee the part-time rate identified in the visa petition, failure to pay a new H-1B employee within 30 days of admission, or failure to pay a new H-1B nonimmigrant already present in the U.S. within 60 days of the date the nonimmigrant becomes eligible to work for the employer. The prohibition against unpaid nonproductive status does not apply to nonproductive time due to non-work related factors such as a voluntary request by the nonimmigrant for an absence like maternity leave or circumstances rendering the nonimmigrant unable to work.
Return Travel Expenses.
By signing an H-1B petition, an employer is representing that if the employee is terminated prior to the expiration date of the H-1B status, then the employer will pay reasonable costs of transportation to his/her home country. 8 CFR § 214(h)(4)(iii) (E) states as follows (in pertinent parts): The employer will be liable for the reasonable costs of return transportation of the alien abroad if the alien is dismissed from employment by the employer before the end of the period of authorized admission pursuant to section 214(c)(5) of the Act. (…)If the beneficiary believes that the employer has not complied with this provision, the beneficiary shall advise the Service Center which adjudicated the petition in writing. The complaint will be retained in the file relating to the petition. (…) This provision applies to any employer whose offer of employment became the basis for an alien obtaining or continuing H-1B status.
I, _______________________________(Print Name of the Department Head/Chairperson), certify that, by filing the H-1B petition on behalf of the above foreign national, our department agrees to the terms of the labor condition application for the duration of the applicant’s authorized period of stay for H-1B employment, including paying the alien prevailing wage specified above and offering the prevailing working conditions to the alien, and that our department will be liable for the reasonable costs of return transportation of the above-named alien if the alien is dismissed from employment by our department before the end of the period of authorized stay.
____________________________________ ___________________
Signature of Department Head/Chairperson Date
_________________________________________ __________________
Signature of H-1B employee’s immediate supervisor Date