H-1B: Visa Overview

Definition

The H-1B is an employment-based nonimmigrant status which allows a foreign national to come to the U.S. and temporarily perform services in a specialty occupation. A specialty occupation is one which requires the theoretical and practical application of a body of highly specialized knowledge to perform the occupation.

H-1B employment is site specific according to federal law. Therefore, H-1B professionals may only be employed by the Purdue department that submitted the H-1B petition. No other employment, on or off campus, is permitted without separate approval by the U.S. Citizenship and Immigration Service (USCIS).

The federal government allows the USCIS to approve a certain number of new H-1B petitions each federal fiscal year. A new law (AC-21) raised this quota as well as exempted certain employers from the quota. Purdue University, as an institute of higher education and research, is exempt. Therefore, H-1B petitions processed by Purdue University are not subject to this quota.

Qualifications

The position must require a Bachelor's degree or higher and must be a professional  position. "Professional" at Purdue is considered to be those positions designated as Administrative/ Professional (A/P), Postdoctoral, and Faculty positions.

The H-1B beneficiary must be a professional or otherwise possess highly specialized theoretical and practical knowledge which relates to the position offered. This individual must have the U.S. equivalent to a Bachelor's degree or higher and the degree must directly pertaining to the position.

Employer Responsibilities

  1. The employer must file a Labor Condition Application (LCA) with the Department of Labor (DOL) following the regulations set by DOL.

    The employer must pay the H-1B beneficiary the actual wage level paid to all other individuals with similar experience and qualifications for the specific position or the prevailing wage determined by the DOL for the occupation in the area of employment, whichever is higher.

    The employer attests on the LCA that the employment of the H-1B beneficiary will not adversely affect the working conditions of workers similarly employed in the area of intended employment and that at the time of filing the LCA there are no strikes, lockouts or work stoppages in the place of employment.

    A notice of filing (the LCA) must be posted simultaneously in two conspicuous locations on or before the date the LCA is filed with the DOL.

  2. In order to obtain the H-1B visa for the employee, the employer must document the appropriateness of the wages paid, the duties and responsibilities of the position to be filled and the qualifications of the employee who will fill the position.

  3. If employment is terminated by Purdue University prior to the expiration of the authorized period to stay, the department is obligated to pay the H-1B beneficiary the monetary equivalent for the beneficiary's return trip home.

  4. As soon as employment is terminated Purdue University will notify USCIS that the H-1B petition is no longer in use and request withdrawal of the petition.

  5. Regulations require that documentation filed in support of an H-1B petition must be available for public inspection. The documents to be maintained include the H-1B petition, DOL certified LCA, LCA posting notices, and the prevailing wage and actual wage information obtained, respectively, from the DOL and the employing department.

  6. In summary there are three major steps in the H-1B petition process:

    • Requesting the Prevailing Wage from the Department of Labor's National Prevailing Wage Center and the Actual Wage from Purdue University's Office of Human Resource Services

    • Filing the LCA with the DOL

    • Filing the Form I-129, certified LCA, and beneficiary's supporting documentation with USCIS at the California Service Center

Estimated time to complete all steps is approximately 5-6 months for the filing of a new H-1B petition via regular processing and 12 weeks for the filing of H-1B portability/extension/amendment/expedited cases. Please note that ISS cannot predict DOL or USCIS processing times and cannot guarantee an exact start date. Please make sure you plan accordingly and allow adequate time for processing.

Additional Information

The H-1B status may be extended for a maximum period of six aggregate years. For certain individuals in the permanent residency process additional extensions may be possible. Check with ISS to inquire whether this applies to your case.

The H-1B "job-site specific", meaning that each H-1B is "specific" to one particular job description, time frame, location, department and institution. If any of these change, a new or amended H-1B petition must be filed. ISS should be notified at least 12 weeks PRIOR to any change taking place to allow for a USCIS receipt notice to be received.

Departments who desire to employ international faculty and researchers under the provisions of an H-1B visa should allow a minimum of 5-6 months for processing a petition. In the case of a prospective employee in J-1 or J-2 status a considerable amount of additional time (i.e. one year) may be necessary.

Please note that a J-1 may be more appropriate for the department's needs if intended employment is three years or less. Processing a J-1 may be quicker, because it involves less paperwork and does not require DOL certification. In addition, the spouses of J-1 holders may apply for authorized employment while the spouses of H-1B visa holders may not. However, the J-1 status is not for employment. Please discuss this matter with ISS to determine whether the H-1B or J-1 status is appropriate for each particular case.

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