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H-1B Processing for Administrators at USC

H-1B Processing for Administrators at USC. Presented by: Faculty/Staff Visa Services The University of Southern California. INTRODUCTION.

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H-1B Processing for Administrators at USC

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  1. H-1B Processing for Administrators at USC Presented by: Faculty/Staff Visa Services The University of Southern California

  2. INTRODUCTION Foreign national (FN) faculty and staff are an important part of the Trojan family. Usually an FN is engaged because they bring unique skills and expertise to their area of endeavor. USC can hire a foreign national (FN) in many capacities, in both staff and faculty positions. All enhance our community and our programs. This guide is intended for the use of the department administrator responsible for H-1B processing in his/her department. It is our hope that it will help busy USC administrators to navigate this complex process, and help us to assist this important USC population with its unique circumstances. Thanks for looking it over!

  3. GENERAL INFORMATION FSVS understands that the need for H-1B processing comes up in many different ways – sometimes at very short notice. While we do our best to accommodate as many situations as possible, we need the department to assist in managing this very complex process: • Make FSVS your first call – the earlier we can troubleshoot a situation, the better the outcome. • Each hiring unit should appoint only ONE administrator to manage the process, preferably at the Home Department Coordinator level or above. • Throughout the H-1B process, avoid referring the FN to FSVS directly; rather, (much like when dealing with USC Payroll) communications should go through the administrator as far as possible to minimize confusion.

  4. 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.

  5. 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.

  6. What is H-1B status: What Jobs at USC qualify? The faculty or staff position offered by the hiring unit must: • Be full time: While regulations technically allow for part-time H-1B employment, the compliance steps required are not compatible with existing USC systems. Thus, USC cannot sponsor part-time positions at present. • Require a Bachelor’s degree in a specific field: The generic USC job description and addendum must show that the hiring unit requires a Bachelor’s degree or higher in a specific field. • Be benefits-eligible: the position must be eligible for all regular USC employee benefits. • Pay the appropriate H-1B wage: FSVS will look at both actual wages paid by the department for similar positions and USDOL prevailing wages after the request is received.

  7. What is H-1B status: What candidates are qualified? • The qualified candidate for an H-1B position must: • Possess a Bachelor’s degree or higher, as required by the position; and, • The degree must have been awarded in exactly the field required for the position; and, • He/she must have no background immigration issues that could interfere with the process (overstays, deportation, etc.).

  8. What is H-1B status: How long does H-1B status last? • A person can be in the U.S. in H-1B status 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 simply 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.

  9. 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.

  10. 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:

  11. 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.

  12. 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.

  13. H-1B Case Types 3-4: Extending and/or Amending • Depending on the circumstances, USC can file extension petitions until the FN has been in the U.S. in H-1B status for 6 years. • If the conditions of employment change –hours, salary, duties, location or title – USC MUST file a new petition BEFORE the change can be implemented. At the same time, we can extend. • To extend USC sponsorship of H-1B status, the hiring department must submit a request packet to FSVS 6 to 7 months prior to expiration. Additionally, USC Payroll will start reminders 6 months before expiration. • USC will file before the 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.

  14. 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  • USCIS 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.

  15. 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.

  16. 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.

  17. 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.

  18. 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 large 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: If she can stay with her employer until USC can file a petition for her, then she can start with USC as soon as USCIS receives it.

  19. 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.

  20. Special Issues: Clinical Positions at the School of Medicine • H-1B regulations are Federal, therefore the person must meet both California AND Federal regulations in order to practice. • Thus, for positions where the individual will be involved in patient care over 20% of the time, an ECFMG certificate will not be adequate. Instead, the individual must have passed USMLE Parts I, II AND III to meet the federal requirements for an H-1B.

  21. PREPARING THE REQUEST Faculty/Staff Visa Services(FSVS) is the only office authorized to prepare USC’s H-1B petitions for submission to the USCIS. The H-1B Questionnaire can be found on our website: http://sait.usc.edu/fsvs/index.html • All requests for H-1B processing must be prepared by the hiring unit using the FSVS H-1B Questionnaire. • If you have reviewed everything but need further guidance, please contact us. • Administrators generally find it to be best practice to order USC checks first thing, to minimize delays. • It is helpful in preparing the packet to understand a little about what “type” of request you are making (see the “H-1B Case Type” section). NOTE: FSVS WILL NOT ACCEPT INCOMPLETE PACKETS. THEY WILL BE RETURNED VIA CAMPUS MAIL.

  22. Required Materials: Department Request Form • Provides important information for the hiring department about their responsibilities. • Must be completed in full. • Must present the three (3) required signatures (as applicable to the department's situation).

  23. Preparing the Request: Employment Information • FSVS sees cases from over 230 hiring units. The questionnaire provides FSVS with important information we need to: • Identify which hiring unit exactly we are dealing with (not always easy in a decentralized university structure) • Identify the job, and make sure we can request an H-1B for it; and • Gather basic facts for presentation to the CIS 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 “n/a”, so that we know nothing was skipped.

  24. Preparing the request:Employment Information • FSVS requires as complete a JOB DESCRIPTION as possible. • The job description will be used to determine the prevailing wage and to draft a statement to the USCIS regarding the person’s actual duties. • Generic USC job descriptions are a good point of departure, however we will also need any addendums, and any additional information that can be provided. • Clinical positions will also require a breakdown of duties as discussed later.

  25. Preparing the request:Salary/Wages • There is no one “H-1B wage” FSVS can identify in advance of a case being submitted. • According to federal regulations, the petitioning employer must pay either the prevailing wage for the H-1B job or the actual wage paid by the employer, whichever is higher. • The hiring unit needs to provide information on similar positions in the department, so that FSVS can compare it to the USDOL prevailing wage. This data is called “Actuals”. • Once the request is received, FSVS will research the prevailing USDOL wage data and compare it with the “Actuals” provided by the department. Only then can we tell if the wage offered is acceptable for H-1B purposes.

  26. Preparing the Request: Employee Information • Provides FSVS with important information regarding the FN’s 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 “n/a”, so that we know nothing was skipped. This part of the questionnaire:

  27. Required Materials: Processing Fees • FSVS does not currently charge a fee for our services. • All required fees are for the government agency that processes the petitions – the U.S. Citizenship and Immigration Services (USCIS). • Comprehensive information about USCIS fees can be found on the last page of the Questionnaire • There are three types of fees the USCIS commonly charges : • $320: H-1B filing fee: Required in all cases. • $500: “Fraud” fee: Not required in extension cases. • $1000: Premium Processing fee: Required for all USC cases. FSVS HOT TIP: Many administrators save time by ordering USC checks immediately through Disbursement Control. Use their online form and attach the page from the questionnaire indicating which fees are needed for that case. Include the name of the individual in the description.

  28. Required Materials: Processing Fees (cont’d) • Currently FSVS requires all departments requesting H-1B processing to pay ALL government filing fees. This avoids several issues that can arise in regard to who paid what etc. • Fees should NEVER be recovered from the FN, even if they offer to pay the fees. This can cause problems. • NOTE: As of January 2009, FSVS requires that ALL H-1B requests include fees for Premium Processing. Due to USCIS Service Center procedures and the unpredictability of their processing times, this is our only way to ensure that we have recourse if something goes amiss.

  29. 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 the FN holds the required degree. • If the required degree was issued by a U.S. institution: FSVS needs the diploma and/or transcript showing relevant details. • If the required degree was issued by a foreign institution: FSVS needs 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 the degree is in a language other than english: the document must be accompanied by a certified translation. • If the FN has 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).

  30. 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.

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

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

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

  34. Required Materials: Offer letter • An offer must have been made to the person before FSVS can begin processing. • FSVS will need a copy of the offer letter that was given to the person. • We only need a copy – not the original. • It should be prepared using the template authorized by the Provost’s office and must be signed by the authorized department hiring official.

  35. TIMING THE REQUEST • 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? • If you can’t figure this out on your own, contact FSVS for assistance. • 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.

  36. 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.

  37. WHAT TO EXPECT DURING PROCESSING • The basic procedure: • Dept. Administrator sends prep packet to FSVS. If on review it is complete and without issues, FSVS begins processing. • It takes FSVS a full 6 weeks on average to draft and finalize the petition for submission. If issues arise FSVS will contact 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. Continue for details…

  38. What to Expect During Processing:Step 1: FSVS reviews the packet. • When FSVS receives the packet you will be notified. • The specialist working on the case will perform an initial review for completeness of the submitted documents. • If the packet is incomplete in any respect it will be returned via campus mail. • If issues arise regarding wage, the job itself, or the person’s qualifications we will notify you at this time.

  39. What to expect during processing:Step 2: FSVS drafts the petition. Once the packet is verified as complete, actual processing begins at FSVS: • The prevailing wage for the position will be researched and confirmed. In some cases, we may have to send away for it. • A “Notice of Posting” will be emailed to the Dept. Administrator for posting in compliance with U.S. Department of Labor (DOL) regulations regarding H-1B employment. • A “Public Access File” will also be created for DOL compliance. • A “Labor Condition Application” (LCA) will be drafted and filed with the DOL. The approved LCA must be included in the petition filing. • A cover letter must be drafted to instruct the USCIS as to who we are, what type of case it is, what the job is, what the FN’s qualifications are. • Several government forms must be drafted: Forms I-129, Supplement H, Data Collection form, etc.

  40. What to expect during processing:Step 3: FSVS assembles the petition • For proper submission the petition must be assembled according to USCIS best practices. • The finalized petition generally consists of: • The USC cover letter • The government forms and approved LCA • Documentation evidencing the FN’s qualifications: Diplomas, transcripts, foreign degree evaluations • The FN’s immigration documents: Passport bio page, I-94, previous status docs, etc.

  41. What to expect during processing:Step 4: FSVS reviews and submits • The petition is full of details. Errors can cause problems for the person and USC. Hence, the assembled petition must be reviewed thoroughly before being submitted. • This is where errors are caught and sometimes subtle legal issues can arise that were not noticed earlier. • Once FSVS can assure the petition is correct and complete, and all forms and letters are signed by the FSVS Director, a “file copy” is made, so that we have a complete record of what was submitted. • The petition is then submitted to the USCIS via Federal Express. At this stage an email is sent to the requesting administrator notifying her/him that the petition has been filed.

  42. What to expect during processing:Step 5: USCIS receives the petition • The mailroom at the USCIS regional Service Center is huge, with 180,000 pieces of mail arriving monthly, being sorted by private contractors. • Once they identify the type of request, and verify that all documentation is complete, they “fee in” the case and trigger generation of the receipt. • Sometimes they goof – they might miss a document and return the petition to us! • A day or two later a receipt is mailed back to our office via U.S. Post.

  43. What to expect during processing:Step 6: USCIS adjudicates the petition • A USCIS officer must adjudicate the petition, i.e. make a decision, as to whether or not to approve the case. Unlike with an “application”, just submitting what is required does not secure approval. • Possible outcomes include: • Approval: this is what we see in the majority of our cases. • Request for Evidence (RFE): Where the Officer decides she needs to see something in addition to what was submitted in order to issue approval. We rarely receive RFEs. • Denial: Very rarely does the USCIS issue a denial without first sending an RFE.

  44. What to expect during processing:Step 7: USCIS approves the petition • Once the USCIS Officer issues an approval, it is sent to FSVS via U.S. Post. • Once the approval arrives, FSVS will prepare an approval packet including: • Instructions for the administrator. • Instructions for the FN. • The original approval notice. • A full copy of USC’s petition, including the LCA. • FSVS will notify the Dept. Administrator to pick up the packet: • 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.

  45. It’s approved! Now what? • The administrator picks up the approval and follows FSVS instructions as to next steps. These will vary, depending on the type of case. However, in general: • Admin must make copies for department • Admin must give FN both the original approval notice and full copy of the petition, including the LCA NOTE: ONCE APPROVED, IF THERE IS ANY CHANGE IN THE H-1B EMPLOYMENT, THE DEPARTMENT MUST NOTIFY FSVS ASAP.

  46. EMPLOYER RESPONSIBILITIES In becoming an H-1B Employer, USC has made “promises” to the government regarding how we will employ the FN. Accordingly, we cannot change the FN’s job or pay rate, or terminate the employment without notifying the USCIS. …continued…

  47. H-1B Employer Responsibilities:Changes to Employment • H-1B employment is specific to what is outlined on the petition: Employer, Title, Duties, Salary and location. A change in any of these factors can require a new petition. • If the hiring department is contemplating any changes in the H-1B employment they must contact FSVS immediately. • H-1B employees cannot change jobs at will around USC; if another department makes an offer to the person, they must contact FSVS immediately to request an evaluation to see whether a new petition must be filed. If required, an amendment petition must be filed BEFORE the person can take up the new job. This can take several weeks, so must be planned carefully.

  48. H-1B Employer Responsibilities:Maintaining Proper Employment • The department will receive email notification from USC Payroll a full 6 months before the H-1B expires, reminding them that the H-1B is ending. • At that time, A FULL SIX (6) MONTHS BEFORE EXPIRATION it is appropriate for the department to submit an extension request to FSVSasap. • Even if the person is undergoing legal permanent residence (LPR) processing, it is important to keep the underlying nonimmigrant status until the “green card” is in their hands. This practice protects the individual and USC from processing mishaps related to the LPR.

  49. H-1B Employer Responsibilities:Terminating Employment • If the H-1B employee resigns, the employing department must notify FSVS immediately. • If the department is terminating the H-1B employee, they must notify FSVS immediately. • Where the department terminates employment, they may be responsible for the cost of a one-way plane ticket home for the person, if s/he is leaving immediately upon termination. Contact FSVS if the question comes up. • There is NO GRACE PERIOD at employment termination for H-1B’s the way there is for some other visa types. The individual’s H-1B status terminates immediately upon the last day worked.

  50. When the “Green Card” Question Comes Up • USC sponsors faculty and staff for legal Permanent Residence, also known as a “green card”. • There are different categories of sponsorship, each with different qualifying factors. Only FSVS can determine which is appropriate. • The process should start immediately for tenure-track and tenured Faculty, as early as when the job offer is made. • Research Faculty and staff must wait until they have two years of qualifying employment with USC. • At the appropriate time to start the process, the department administrator and the individual must meet with the Director of FSVS to discuss options.

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