H-1B status is for foreign nationals who come to the U.S. to work temporarily in specialty occupations. Specialty occupations require the theoretical and practical application of highly specialized knowledge as well as attainment of a bachelor's or higher degree in the specific specialty as a minimum for entry to the position.
Because the H-1B status is employer specific, the H-1B holder may only work for the employer that petitioned USCIS for their H-1B status.
Obtaining H-1B Status
H-1B status is obtained through the Texas A&M University System member for whom the employee will be working. The hiring department will initiate the request to obtain the H-1B with Immigration Affairs through our case management system, Tracker. If you need access to Tracker, please contact our office at 979-862-1719.
Through Tracker, Immigration Affairs will send employers a packet of documents needed to prepare an H-1B petition and create the federally required compliance files. Employers will need to complete the forms, have them signed and then upload them to the employee's Tracker record.
Immigration Affairs also sends the employee a questionnaire to complete. Based on their answers, a list of the required documentation is then provided.
Steps in Obtaining H-1B Classification
1. Prevailing Wage Determination: A completed Department Request for a Prevailing Wage Determination form, along with the position description, will allow us to obtain the most appropriate prevailing wage from the Department of Labor (DOL). Employers must pay the salary offered to the employee or the prevailing wage dictated by DOL, whichever is greater.
2. Labor Condition Application: After obtaining a prevailing wage determination, we will prepare and file Form ETA 9035, Labor Condition Application (LCA) with DOL.
Information needed to complete the LCA includes:
- Job title
- Proposed rate of pay
- Proposed dates of employment (maximum time per H-1B application is 3 years)
- Physical location(s) of employment
3. Nonimmigrant Petition: When we have received a certified LCA from DOL, the H-1B petition with the employee's supporting documentation will be submitted to USCIS for adjudication. Once filed, USCIS will issue a receipt notice as evidence that the petition has been received and will be processed. Immigration Affairs will forward the receipt number to Texas A&M employees which can be used to check the status of the case online.
4. The H-1B Approval Notice: Upon approval of the H-1B petition, USCIS issues Form I-797 Notice of Action. Those employees that are not yet in the U.S. will use the I-797 when applying for a visa at a U.S. consulate. Employees in the U.S. will receive a copy of the I-797. The original I-797 is retained by Immigration Affairs or your school/agency’s Human Resources office. The original I-797 can be checked out when employees need it for travel, applying for a driver’s license or in case of other similar circumstances.
Duration
In general, H-1B status may be held for a maximum of six years. Exceptions to this include the following instances:
- If the foreign national has spent time abroad while in H-1B status, that time is recoverable.
- If 365 or more days have elapsed since a labor certification or I-140 benefiting the H-1B holder was filed, he or she may be eligible for a one-year extension of his or her H-1B status.
- If the foreign national is a citizen of India or China having an approved I-140 but who cannot apply for adjustment of status because his/her priority date is not current due to the "per country" limits on immigrant visa availability, the foreign national may be eligible for a three-year extension of his or her H-1B status.
Filing Fees
New H-1B petitions must be accompanied by standard and fraud prevention and detection filing fees. The most current fees can be found on the USCIS Fee Schedule. The employer must pay each of these fees in the form of checks made payable to "Department of Homeland Security". The H-1B applicant must not pay either of these filing fees.
USCIS offers premium processing for an additional fee. Use of premium processing decreases processing time to 15 days. The premium processing fee is paid by either the employer or the employee depending on the need for the service.
Processing Times
The approval time for H-1Bs varies because the petitioning process involves federal agencies (DOL and USCIS) with their own fluctuating workloads. Additional time may be needed in order to obtain all the necessary documentation or to resolve prevailing wage issues. Also, in the event that USCIS questions the H-1B petition by issuing a Request for Evidence, extra time will be needed to prepare a response.
J-1s Changing to H-1B
H-1B applicants who have held J-1 status and been subject to the two-year home residence requirement must present evidence of satisfying the requirement or having the requirement waived. A Department of State waiver recommendation or a USCIS waiver approval (Form I-612) serve as evidence of having the requirement waived. Those applicants who present a Department of State recommendation must be prepared to show the actual I-612 waiver approval notice when applying for a visa at a U.S. consulate.
Portability/Changing H-1B Employers
Individuals who hold valid H-1B status with another employer may begin employment at Texas A&M (or a Texas A&M University System member) as soon as the Texas A&M (or A&M System member) petition is filed with USCIS. In this situation, you do not have to wait for the new petition to be approved before employment commences. The H-1B receipt notice issued by USCIS can be used to show employment eligibility on the I-9 form. Please note that if the H-1B petition is denied, the employee's work authorization is immediately terminated.
H-1B Extensions
H-1B status is extended by the employer filing a petition with USCIS requesting an extension. The petition must be filed before the current H-1B status expires.
Required documentation must be submitted upon request by Immigration Affairs through Tracker. Upon receipt, Immigration Affairs will proceed with requesting the prevailing wage and filing the Labor Condition Application. The petition will be sent to USCIS with only the standard filing fee (the fraud prevention and detection fee is not required). The petition for extension should be filed as soon as possible, but it cannot be filed more than six months before the current H-1B expires.
Extensions can be requested for any period of time up to a maximum of three years as long as it does not put the employee over the six years he or she is allowed to be in H-1B status.
Exceptions to the six year maximum include the following instances:
- If the foreign national has spent time abroad while in H-1B status, that time is recoverable.
- If 365 or more days have elapsed since a labor certification or I-140 benefiting the H-1B holder was filed, he or she may be eligible for a one-year extension of his or her H-1B status.
- If the foreign national is a citizen of India or China having an approved I-140 but cannot apply for adjustment of status because their priority date is not current due to the "per country" limits on immigrant visa availability, the foreign national may be eligible for a three-year extension of his or her H-1B status.
Employment While Extension is Pending
Federal regulations allow the H-1B holder with a pending extension to work for up to 240 days after the current H-1B expires depending on the time remaining of the employee's H-1B maximum six-year stay.
In order to take advantage of this rule:
- The petition for extension must be received by USCIS before the current H-1B expires; and
- The H-1B must continue to work for the employer that filed the extension petition.
H-1B Extension and International Travel
The H-1B holder must be physically present in the U.S. when the H-1B extension is filed with USCIS. H-1Bs who travel after the extension is filed must be sure that they have, or can obtain, a valid H-1B visa for their return to the U.S. If travel plans include returning after the current H-1B expires, the H-1B holder will have to wait outside the U.S. until the extension is approved and it can be used to obtain a new visa from a U.S. consulate.
H-1B Amendments
Federal regulations require the filing of a new petition with USCIS to report material changes to an H-1B holder's employment prior to the actual planned change.
Material changes that must be reported may include, but are not limited to, the following:
- Change in title
- Change in percent effort
- Change in job duties
- Change in work location
- Change in supervisory responsibilities
- Change in salary
In order to determine whether or not an amendment is required, the employer should provide Immigration Affairs with the position descriptions of the employee’s current and proposed positions. This will assist in determining the appropriate course of action. If, according to the information provided, the proposed changes constitute material changes to the employment, an amended H-1B petition must be filed with USCIS.
The amendment petition should be filed with USCIS before the H-1B holder assumes the new title, salary, work location, etc.
The hiring department must retain any documentation regarding adjustments made in the pay system during the validity of the H-1B's Labor Condition Application. This documentation must explain the adjustments and must show that after such adjustments the H-1B employee continues to receive at least the greater of the prevailing wage or the actual wage. A copy of the documentation must be forwarded to Immigration Affairs.
End of Employment and Grace Periods
When an H-1B employee’s employment ends before their status expires, Immigration Affairs is required to notify USCIS, who will then revoke the H-1B so that it can no longer be used. Additionally, Immigration Affairs will withdraw the Labor Condition Application (LCA) with the Department of Labor. Failure to withdraw the LCA could keep the employer liable for complying with its terms and conditions (i.e. payment of salary).
The employer has certain obligations if they terminate an H-1B’s employment prior to the end of their approved H-1B status. Employers are encouraged to discuss this with Immigration Affairs if the situation arises.
Once employment is terminated, the H-1B holder no longer has an immigration status. He or she must immediately depart the U.S. or seek another immigration status.
H-1B employees may be granted a discretionary 10-day grace period at the end of their status. They may also be eligible for a discretionary 60-day grace period if employment ended more than 60 days before their H-1B status expired. If the employment ended less than 60 days before the end of the H-1B, the grace period may be extended only to the end of the H-1B end date. Employment is not allowed during these grace periods.
Dependents
H-1B dependents are classified as H-4s and are not eligible for employment. If dependents are located in the U.S., a change of status to H-4 category is completed on Form I-539. Immigration Affairs cannot advise or provide assistance on the completion of an I-539. If located outside the U.S., H-4 category is granted at the U.S. consulate. Information on the application process can be obtained from the U.S. consulate.