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HIRING H-1B NONIMMIGRANT EMPLOYEES AT TEMPLE UNIVERSITY

Find information on H-1B employment at Temple University, including contact information, application process, and required documents.

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HIRING H-1B NONIMMIGRANT EMPLOYEES AT TEMPLE UNIVERSITY

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  1. HIRING H-1B NONIMMIGRANT EMPLOYEESAT TEMPLE UNIVERSITY

  2. ISSS Contact Information • PHONE: 215-204-7708 FAX: 215-204-6166 • www.temple.edu/isss • Staff Information: • Martyn J. Miller, Ph.D., Interim Asst Vice President, International Affairs • mjmiller@temple.edu; 1-4682 • Joan McGinley, Interim Director • joanw@temple.edu; 1-1272 • Sharon Loughran, Immigration Services Specialist • sharonl@temple.edu, 1-3805

  3. US Government Agencies to Know • U.S. Department of Homeland Security (DHS): DHS combined 22 different federal departments and agencies into a unified, integrated cabinet agency in 2002 www.dhs.gov/ • US Citizenship and Immigration Service (USCIS): Branch of the U.S. Department of Homeland Security which has authority over all aliens in the United States, including international scholars and employees in J and H-1B visa status www.uscis.gov • US Department of Labor (DOL): Government Agency that has authority over Labor Condition Application (LCA) needed for H-1B Petition www.dol.gov • US Customs and Border Protection (CBP): Branch of the U.S. Department of Homeland Security responsible for admitting internationals into the US www.cbp.gov • US Immigration and Customs Enforcement (ICE): Enforces federal laws governing border control, customs, trade and immigration to promote homeland security and public safety; oversees SEVIS, the software system used for F and J students/scholars https://www.ice.gov/ • US Department of State – Authority over issuances of all US non-immigrant and immigrant visas http://travel.state.gov/content/visas/english.html

  4. Minimum Academic Requirement for H-1B Employment A "specialty occupation" for H-1B purposes is an occupation that requires "(A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

  5. ISSS does not process petitions for part-time faculty positions • ISSS may take up to 45 Business days to complete the processing of the materials for this petitionso the department should submit a complete application to ISSS no later than three months prior to the requested H-1B start date • The Premium Processing Fee DOES NOT apply to the LCA, only USCIS processing time • Submission of a petition to the USCIS does not guarantee approval of the petition • The hiring unit must notify ISSS at least 30 days in advance of  ANY changes in the H-1B’s employment so that ISSS can determine if notification to the proper government agency is required

  6. Application Process for Employment in H-1B Status ISSS can request up to 3 years on each H-1B petition. To avoid cost for return transportation, departments may wish to request dates for which you have funding. The End Date for Faculty and Post Doctoral Fellows must match the appointment/contract letter.

  7. Application Process for Employment in H-1B Status ISSS requests that Departments review Estimated Processing Times when choosing a Requested Start Date www.temple.edu/isss/international/estimated-start-h1b.html ISSS recommends Premium Processing most H-1B petitions at this moment since the processing times are so long (about 9 months)

  8. Items Needed for a Complete H-1B Application From Hiring Department: • Required Checks • Controlled Technology Form • Job Description • Actual Wage Documentation • TU Appointment/Offer Letter signed by appropriate TU Official (Post Doc Office will send ISSS the approved version of department's Post Doc letter) From HR Generalist If HR-Hired Position (Upload to ISD or send through TUSafesend): • Copy of Official Job Offer Letter • Copy of Official Job Description • Actual Wage Documentation

  9. H-1B Processing Fees Departments are required to pay mandatory processing fees associated with H-1B employment: • US$500 “anti-fraud” fee is required for anyone who has not had H work authorization for TU • US$325 ($460 after 12/23/16) application fee is required for every H-1B Petition • If expedited processing is required for Business Purposes, Dept must pay the US$1,225 premium processing fee; if expediting is due to personal reasons like travel, H-1B can be asked to pay the premium processing fee. • $1225 is IN ADDITION TO the $325/$460 regular processing fee. • Hiring departments may also choose, but are not required, to pay the current $290/$370 fee for applications of dependents of employees in H-1B status. NEW USCIS FEES: New fees take effect on December 23, 2016. Applications or petitions mailed, postmarked, or otherwise filed on or after 12/23/16 must include the new fee of $460 (replaces the $325 application fee). Please note that the new fee for I-539 applications for dependents is $370.

  10. Department invites H-1B applicant through ISD • Department completes a Controlled Tech Form and emails it to sharonl@temple.edu; ISSS sends it to University Counsel and awaits decision • H-1B applicant enters required data and upload required documents into the Visitor site, then submits record to TU Department • Department adds required information on Appointment, Site of Activity and Funding screens and uploads required documents • If the H-1B will be hired through Human Resources, then HR Generalist will upload required documents into ISD (Official offer letter, Official Job Description and Actual Wage Documentation) • Department submits H-1B applicant's record to ISSS via the "Tasks" tab in ISD • Department mails or drops off necessary checks to ISSS

  11. Upon determination that the salary meets US DOL regulations, ISSS begins LCA / DOL Posting Notice process. LCA certification takes a minimum of 7 days. • Once University Counsel notifies ISSS that no Deemed Export License is required, the LCA has been certified by DOL, and ISSS has a complete application,  ISSS begins processing the I-129 and supporting letter for the H-1B petition. This step of the process may take several business days. • When process is complete, the H-1B petition is compiled, checks are attached and the petition is submitted to USCISvia UPS. If petition is being premium processed, we expect a response from the USCIS within 15 days of USCIS’ receipt of petition. The response can be an approval notice, a request for further evidence, or an intent to deny the petition. • The hiring department, Human Resources and the H-1B applicant will be notified via email when ISSS receives the Receipt Notice and Approval Notice from USCIS.

  12. Given the nature of compiling a petition for H-1B status, ISSS requests a minimum of eight (8) weeks to process a petition. • If the person you wish to hire is currently abroad and has never held H-1B status, s/he must wait abroad until the H petition is approved. The USCIS will notify the US Consulate closest to that person’s residence of the approval. The potential employee must then apply for an H-1B visa stamp. This could take days, weeks or months, depending on such factors as length of security and criminal checks, wait time at US Consulates, and holidays.

  13. H-1B Portability A “transfer H-1B” is someone who already holds H-1B status and is currently working at another institution. Consistent with the portability of H-1B status, hiring department does not need the petition to be approved before allowing a transferring H-1B employee to begin working. The H-1B is “portable” and may begin working at Temple once we have a Receipt Notice from USCISand once employment is authorized by HR. Please note, however, that we still need to wait for a certified LCA from DOL, a Controlled Tech decision and a receipt notice from UCIS, so this process can still take up to six weeks.

  14. WHEN CAN H-1B EMPLOYMENT BEGIN? • H-1B New, Change of Status Petitions – Employment may not begin until ISSS receives the ORIGINAL Approval Notice from USCIS • H-1B Extension Petitions – Employee may continue employment for up to 240 days while waiting for approval as long as USCIS receives the H-1B petition before the current TU H-1B expiration date • H-1B Transfer Petition - Employee may begin TU employment upon receipt of “receipt notice” from USCIS

  15. Time Limits on H-1B Status • Initial period of up to 3 years, depending upon the offer/appointment letter • Extensions of stay may be requested for up to 3 more years • The maximum total stay in H-1B status is 6 years. This includes all time in H-1B status, regardless of the employer • ISSS can petition for additional years in H-1B status if the H-1B has a Labor Certification (PERM)/I-140 application pending for at least one year OR if H-1B has an approved I-140 but is from an oversubscribed country and cannot adjust status. It is CRITICAL that the H-1B files a Green Card Application no later than the beginning of her/his 5th year in H-1B status to remain employed H-1B past the 6th year maximum. • Normally USCIS will only issue H-1B employment authorization for the length of a required State License (if applicable). • USCIS determines the length of time they will grant H-1B work authorization • No formal grace period for H-1B status; H-1B may not be in the US if not employed

  16. H-1B Wage-Related Issues • The actual wage is the amount being paid to all other TU employees with similar experience and qualifications for the specific position at the particular laboratory, center or department. • The prevailing wage is the rate being paid in the greater Philadelphia area for the same occupation. If employment will take place at more than one site, we must determine the prevailing wage for both locations. • The H-1B must be paid the higher rate of the prevailing or actual wage. Common Sources for Prevailing Wage: TAUP for Faculty AFSCME, PTEA Department of Labor’s Foreign Labor Certification Data Center: Online Wage Library AAMC (for medical residents)

  17. Obligation to Pay – Nonproductive Time: The employer must paythe required wage rate for all nonproductive time caused by: • conditions related to employment • lack of work • lack of permit • studying for licensing exam • employer required training Failure to pay will result in the employee’s being “benched.” Benched time must be compensated. Payment is not required if reasons are unrelated to employment and are truly voluntary, such as: • Voluntary absence for pleasure • Voluntary absence due to illness

  18. Obligation to Pay – Nonproductive Time: • Full-time workers must be paid the full amount of the required wage rate • Part-time workers must be paid for the number of hours indicated on the I-129 and referenced on the LCA. In other words, if we list 30 hours per week on the LCA, the H-1B must be paid for 30 hours per week, regardless of whether or not s/he actually works 30 hours a week.

  19. Authorized Deductions from Wages: • Deductions required by law (taxes) • Reasonable/customary deductions (insurance, savings, retirement) • Authorized by a collective bargaining agreement

  20. Permissible Deductions: • Voluntarily authorized in writing by the employee, but not as a condition of employment • Principally for the benefit of the employee • Do not exceed the fair market value or actual cost of a provided benefit (lodging, transportation, goods, for example) • Do not exceed the garnishment limits

  21. Deductions that may not be taken: • To recoup an employer’s business expense • As a penalty for early cessation of employment • To cover the costs incurred in the petition process • To recover the $500 Anti-Fraud Fee

  22. Short-Term Placement: Employers may temporarily place an H-1B worker at a worksite without an LCA if they: • Pay the required wage rate of the home-based LCA • Pay the actual cost of lodging • Pay the actual cost of travel, meals, and incidental or miscellaneous expenses

  23. Short-Term Placement Limitations: • There can be no strike/lockout at placement site • There can be no LCA for that geographic area of employment • The H-1B worker does not exceed 30 workdays within a one-year period • Plus an additional 30 workdays if certain criteria are met

  24. Displacement of U.S. Workers: Super Penalty Violation • A three year debarment and Civil Money Penalty (CMP) not to exceed $35,000 per violation may be assessed where an employer (in a final determination) was found to have a willful violation, in the course of which a U.S. worker in an essentially equivalent job was laid off within 90 days before or after the filing of the H-1B petition • Applies to all H-1B employers, not just H-1B dependent and/or willful violator employers • Applies only where the displaced U.S. worker is employed by the violating H-1B employer • This displacement ban did not sunset

  25. Whistleblower Protection: The employer may not retaliate against any current, former, or prospective employee for asserting H-1B rights or cooperating in H-1B enforcement.

  26. The employer must maintain the following records: • Complete petition package • Payroll and basic records • Name, address, social security number, occupation of workers • Benefit plans • Record of dependency determination

  27. The H-1B Reform Act of 2004: Authorizes Wage and Hour to conduct an investigation if it receives information from a known “credible source” likely to have Knowledge of an employer’s practices or labor conditions within 12 months of the alleged violations Violation Categories: • Wages • Benefits • Misrepresentation of a material fact • Working conditions • Strike/Lockout • Notification • Specificity • Displacement – Direct and Secondary

  28. Dual Intent Most nonimmigrant classifications require aliens to prove they have a residence abroad that they do not intend to abandon, and that they do not have the intention to immigrate permanently to the US. This implies that taking steps towards U.S. permanent residence will, in most cases, jeopardize an alien's chances of acquiring a nonimmigrant visa or nonimmigrant status. The H-1B category, however, benefits from the doctrine of "dual intent." Dual intent allows a nonimmigrant to obtain or continue in a particular nonimmigrant status even though steps may have been taken towards obtaining U.S. permanent residence.

  29. End of Employment Issues • The Department of Labor’s Administrative Review Board holds that an employer must pay the required salary to a terminated worker after the date of termination, until the employer can prove that it notified USCIS of the H-1B’s termination. Your department is required to continue to pay the employee until our office has proof that USCIS has been notified of our intent to withdraw the petition. • Departments MUST contact ISSS AS SOON AS THEY KNOW that an H-1B position will end, either through voluntary or involuntary means, as ISSS must withdraw the H-1B petition from USCIS.

  30. End of Employment Issues If the employer dismisses the H-1B worker prior to the end of the period of authorized employment, the employer must present a check to the employee equivalent to the reasonable costs of return transportation to the alien's last place of foreign residence. Dismissal for any reason, even for cause, triggers this provision.  INA § 214(c)(5)(A); 8 C.F.R. § 214.2(h)(4)(iii)(E) The hiring department must email the following items to ISSS as soon as the department notifies the employee of termination: 1. Copy of the check that covers return transportation fees 2. Copy of the research documenting how you arrived at the cost of a one-way return ticket to the employee's home country 3. Signed statement from H-1B employee indicating that s/he received the check from the department

  31. The employee should depart the US on the final day of TU employment, unless he or she has secured the H-1B sponsorship of another employer or otherwise changed immigration status as there is no grace period for H-1B Temporary Workers. • If the employment relationship terminates, the H-1B nonimmigrant will "fall out of status" and can be removed from the US. Although USCIS has the authority to accept and approve applications for extension of stay or change of status even in such circumstances, that authority is highly discretionary, and is exercised only on a case-by-case basis. www.temple.edu/isss/international/end-employment-issues.html

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