Immigration Services

Frequently Asked Questions

FREQUENTLY ASKED QUESTIONS

What is an H-1B?

H-1B is a type of temporary employer and employee relationship that is defined by a petition submitted to United States Citizenship and Immigration Services (USCIS). The petition comprises documents describing the employer, the employee, and the employment; several of these documents must have prior approval from other state and federal agencies. When an H-1B petition is approved, the US Government grants H-1B status to the employer, which in turn gives the H-1B benefit (work authorization) to a foreign national employee.

H-1B is also a type of visa which indicates the reason the foreign national is coming to the US is to participate in a particular employer/employee relationship. H-1B allows the employer and the employee to have “dual intent.” Under the doctrine of dual intent, the employer and the employee may have the simultaneous intent of holding a temporary H-1B non-immigrant visa and applying for permanent residence. Thus the H-1B is a bridge between non-immigrant status and immigrant (lawful permanent resident) status.

How do I know if MUSC should petition for the H-1B benefit for my prospective employee?

H-1B petitions are only appropriate for certain positions and only necessary for certain foreign national employees hired into those positions. If a foreign national has no current work authorization or has work authorization (such as that conferred by the F-1 Optional Practical Training program) that expires soon, MUSC must file an H-1B petition. International Support Services will make a determination about the appropriateness of an H-1B petition based on information provided by the hiring unit about the job and on information provided by the foreign national about his/her immigration status.

What kind of position qualifies?

Positions that can be filled with H-1B workers can be permanent, temporary, or temporary grant positions; they can be tenure-track or non-tenure-track faculty, unclassified personnel, or classified staff. The type of duties and the qualifications necessary to perform those duties are what enable a position to be filled with an H-1B worker. The position offered must be a "specialty occupation" requiring:

• theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation culminating in at least a bachelor’s degree or its foreign equivalent (job should be advertised/authorized at the bachelor’s degree level or higher) and either:

• a graduate degree (or in some exceptional cases, an undergraduate degree with substantial work experience) in a specific academic discipline as the standard minimum requirement for entry into the particular position, or

• a full state license or other certification required to perform the occupation granted after passage of normal professional tests and requirements. If the occupation requires a license, the alien must hold both at least a bachelor’s degree and a license.

What kind of foreign national qualifies?

The foreign national must have:

• the minimum qualifications as stated in the State of South Carolina position description

• specialized knowledge required to perform the job tasks

• at least a bachelor’s degree in the field and, if required, a license/certification

Are there different types of H-1B petitions?

H-1Bs are submitted on USCIS Form I-129 Petition for Non-immigrant Worker. The form allows petitioners to declare their intent, such as:

• establish H-1B status for an employer and the H-1B work authorization benefit for a foreign worker, assuming the employment is for the first time (new employment)

• transfer (port) H-1B work authorization for an employee who is changing employers

• extend an existing position’s H-1B approval beyond the initial period requested (no change to job duties)

• amend a previously approved petition (make changes to job duties of employee)

Portability petitions require the last three months’ pay statements or similar work verification from the previous employer to verify that the worker maintained H-1B status prior to coming to work at MUSC.

What supporting documents are required?

Supporting documents include:

• A copy of the foreign national's diploma from a U.S. institution showing a baccalaureate or higher degree which is required by the specialty occupation, and copy of official transcript showing highest degree earned; or

• A copy of the foreign national's diploma from a foreign institution, a notarized translation of the diploma, and evidence that the degree is equivalent to a U.S. degree, or proof that the foreign national has education and experience equivalent to the required degree.

• A copy of required license (if any) or other official permission to practice the occupation in the state of intended employment.

• A copy of written contract between the employer and the foreign national.

How much does an H-1B petition cost, and who pays?

The employer can expect to pay $820 ($320 filing fee + $500 fraud prevention fee) for a petition establishing a new employee’s H-1B work benefit. The employer can expect to pay $320 for extending an employee’s H-1B work authorization benefit.

Add $1000 to the expense if premium processing is required for faster government service. Either the employer or the foreign national may pay this fee, depending on who needs to expedite the H-1B petition. If it is a personal need of the employee, the employee may pay the fee to DHS. If the need to expedite is an employer need, the employer must pay the $1000 fee.

If an application for employee’s family member(s) in the US is filed with the H-1B petition, the fee paid by the foreign national to DHS is $300 for the I-539 Application to Change or Extend Non-immigrant Status.

How long does it take to get an H-1B petition approved?

Once submitted to USCIS, adjudication can take 15 days to five months. The length of time depends on several factors:

• The position itself: some fields of national security interest come under special scrutiny, so the background checks conducted by DHS are more extensive.

• The type of processing requested: standard processing can take five months; premium processing expedites the process and ensures adjudication within 15 calendar days of the date the petition is logged as received. There is no guarantee of approval, however.

• The case load of the USCIS service center: petitions are not considered “received” until they are actually logged into the USCIS database; this initial lag can add 10 days to the total adjudication time.

• The need for additional evidence: sometimes USCIS requests more supporting documentation by sending the petitioner a Request for Evidence (RFE).

Once the H-1B is approved, does the foreign national need an H-1B visa before he/she can work?

This depends on the physical location of the foreign national.

• If he/she is already in the US, the beneficiary status can be granted to the employee even without an H visa in his/her passport.

• If he/she is not in the US, additional time may be needed for the H-1B visa to be issued. The approval notice from USCIS must be sent to your employee in his/her home country, so that he/she will be able to apply to the US embassy/consulate for the H-1B visa. An additional delay is possible in receiving an appointment with the embassy/consulate.

Are there any exceptions to the general rule that the foreign national can’t work until the approval of the H-1B petition is received?

Both work authorization (the H-1B benefit) transfer (porting) and H-1B benefit extension are exceptions to this rule:

• Work authorization transfer (H-1B benefit portability) from any other US employer requires verification from USCIS that a petition for H-1B has been filed by the second employer. The employee may work for 240 days from filing date while the “portability” petition is being processed. The “240 Day Rule” for continuation of work authorization is based on a timely-filed petition to extend status or to “port” status in an identical position with the same job description.

• Petitions to extend H-1B status and H-1B work authorization provide an automatic 240 days of continued work authorization while the extension is being processed by USCIS. This period is from the expiration date of the previous H-1B approval. An extension must be filed before the expiration date of H-1B status as listed on the I-797 Approval Notice.

How long can a department employ a foreign national with H-1B work authorization?

Generally, a person can hold H status for six years.

If a foreign national has held H dependent status (H-4), the department can employ him/her as an H-1B worker for six years minus the number of years already spent in H-4 status.

Is there a minimum amount of time for a foreign national to be employed with H-1B work authorization?

There is no minimum amount of time a foreign national can be the beneficiary of H status.

What happens if we want to dismiss an H-1B worker?

If the employer/employee relationship is terminated for any reason prior to the natural expiration of the employer’s approved H status, other than voluntarily on the part of the foreign national, the employer is responsible for the return transportation expenses to the foreign national’s country of last permanent residence or country of citizenship. The employer is not responsible for the return transportation costs of any dependents.

I just got a new grant. Can I change the established job duties of an H-1B worker?

Not without filing an “amended” H-1B petition. H-1B work authorization for the foreign national is employer-specific and position-specific. An H-1B petition defines job tasks, the employee’s supervisor, the building where the job is carried out, etc. Therefore, the H-1B work benefit is obtained on behalf of an employee and may not be used by any other employer or for any other position with the approved employer. The worker is only permitted to work for the approved employer in the approved position at the required wage, conducting the approved job tasks.

What if an H-1B worker wants to take a second job?

An additional H-1B petition must be approved by USCIS for the second employment.

Can I employ an H-1B worker at a site outside the State of South Carolina?

This is possible, but the prevailing wage will be determined by the state in which the job tasks will be conducted.

Should we, or the foreign national, engage an attorney?

MUSC reserves the right to be the sole authorizing entity for H-1B petitions submitted from MUSC. If the foreign national wishes to employ private legal counsel, such counsel must work within MUSC guidelines.

If the H-1B petition is not approved or approval is delayed, is the University liable?

Submission of an H-1B petition by MUSC on behalf of a prospective foreign national employee does not guarantee that the desired results will be produced. The approval of such petitions rests solely with US government agencies -- not with MUSC. Be assured that every effort will be made to produce a complete and approvable petition, and to support MUSC hiring needs.

Is there more guidance about the “actual wage” determination?

According to NAFSA, the Association of International Educators, “The Department of Labor has made it quite clear that for actual wage purposes, it is unacceptable to set a wage based solely on the salary level set by a grant. The ‘can’t afford it’ argument holds little water in the face of a Department of Labor Audit. Determining the actual wage for faculty and researchers is often not as clear-cut as it is for staff employees. Human Resource offices typically have established wage or grade scales for most staff positions. Faculty and research positions, on the other hand, might not have official grade ranges. Salaries for faculty and researchers may be contingent upon many variables, including degree, publications, experience, professional recognition, etc. Faculty and research actual wage ranges can be determined by comparing the salaries offered to people with similar experience and qualifications and responsibilities. Identifying the factors that determine who gets paid more or less will be necessary in order to articulate the employer’s wage system and documenting the actual wage rate.”

“Many universities have expressed concern about the actual wage rate being determined based on several circumstances unique to the university setting. One problem is that some positions at universities are funded by grants or endowments that provide a much higher salary level for those positions than is normal for other positions of a similar nature at the university. Inclusion of those positions within the set of positions used to determine the actual wage rate would result in a dramatic upward revision of the actual wage level, potentially to a level much higher than the university is willing to pay the H-1B alien. Even though the university may believe that it is not technically responsible for the salaries of those persons paid by those grants, it would almost certainly still be considered the employer of those persons; if the process described above can not be used to eliminate such persons from the set of employees who establish the actual wage rate, the university will need to include those persons within its actual wage rate determination” (H-1B Handbook 2006 Edition by Austin T. Fragomen, Jr. and Steven C. Bell).

“The Department of Labor has stated plainly that it will not accept ‘market conditions’ or the ‘lowest negotiated salary’ that the employer is able to work out with the employee as legitimate factors to differentiate salary levels within this group of employees forming the basis for comparison for actual wage purposes. The employer must look behind the negotiated salary to the reasons why it was willing to pay a particular employee more than another, given an equal market” (H-1B Handbook 2006 Edition by Austin T. Fragomen, Jr. and Steven C. Bell).