Starting the Process
ISS will begin the process of obtaining an H-1B for a prospective faculty or staff member at the request of a Purdue department. The H-1B petition is an employment-based petition, not an individual’s, and must be prepared and filed by ISS and not through an outside attorney.
Prospective H-1B beneficiaries, supervisors and professors desiring to hire a nonimmigrant on an H-1B should work through the ISS Department Liaison in their department. This individual has been trained to prepare the necessary documents for ISS and answer general questions.
The process is initiated when a department liaison contacts ISS and provides a completed H-1B Request Form and ISS Fee Form. ISS will review the request form and determine if the H-1B petition should be pursued, or if another typs of immigration status is more appropriate.
Step 1: Wage Determinations
(Prevailing Wage and Actual Wage)
Department of Labor (DOL) regulations for the Labor Condition Application (LCA) dictate that an employer must pay the H-1B beneficiary the prevailing wage or the actual wage, whichever is higher.
The prevailing wage is determined by the State Employment Security Agency (SESA) based on salary surveys within the state of employment. 100% of the prevailing wage determination must be paid beginning on the first day of H-1B employment.
The SESA for Purdue is the Indiana Workforce Development (IWD), a branch of DOL located in Indianapolis. To obtain a prevailing wage a department must complete the prevailing wage request form describing the position in which they desire to employ the beneficiary. HRS Form 10 should be used to complete this form and all information must appear on the Prevailing Wage Request Form exactly as it appears on HRS Form 10 (i.e. number of years of experience required, number of employees to be supervised, job description with percentages, etc.).
After careful review, ISS will fax this request to IWD for a determination. Departments should be careful to describe the position and not the person they wish to fill this position. Departments must also document the MINIMUM requirements necessary to perform the job. If the position is considered entry level this should be noted in the description. On the basis of this information a determination is made by IWD and faxed back to ISS.
The actual wage is determined within the department by comparing other workers in the same position or in a position with similar experience and qualifications. A range of salaries is determined from this pool of individuals. Within this salary range various factors will determine the actual wage for the position for which the beneficiary is applying. These factors include, years of experience, education, specific job responsibilities and functions, specialized knowledge in a particular discipline, and other factors unique to the position.
Step 2: Labor Condition Application (LCA)
After the actual and prevailing wages have been determined ISS will complete the machine readable LCA and send it to the department liaison for the signature of the Department Head. In signing the LCA the Department Head is attesting to the conditions delineated under the section, Employer Labor Condition Statements.
When the LCAs are signed the liaison should make 3 copies. The duplicate original LCAs should be returned to ISS immediately for filing. The 2 copies must be immediately posted in 2 conspicuous locations where other employee documents are posted within the department for 10 consecutive business days. After 10 days these should be removed and returned to ISS with the dates and place of posting noted on the forms. ISS will keep these postings in a public access file per DOL regulations. The third copy of the LCA should be given to the H-1B beneficiary immediately. The LCA will be included with the H-1B petition that is filed with USCIS.
Step 3: Completing the H-1B Petition (I-129)
USCIS Forms used during this step:
Form I-539 (for dependents)
Form I-129 must be completed from information gathered from the questionnaire completed by the beneficiary as well as from information from the department.
Two forms are provided by ISS for departments to give to the beneficiary in order to obtain the required information. These forms consist of a list of documents needed from the beneficiary depending upon his/her status (see Document Checklist) and also a beneficiary questionnaire to be completed by the beneficiary with the pertinent information.
The department must prepare a letter in support of the H-1B petition signed by the Head of Department. Samples of this letter have been provided to each liaison with instructions.
USCIS Fees: The H-1B filing fee for all petitions is currently $320. This may be paid by the department or by the beneficiary. All new H-1B employment also requires payment of an additional $500 anti-fraud fee which must be paid by the employing department. This fee is not applicable for H-1B extensions or amendments.
H-1B and H-4 case processing may be expedited by paying an additional $1,000 filing fee to USCIS. This fee may be paid by the department or beneficiary. Please contact ISS if you have questions regarding whether or not expedited processing is necessary. When expedited, it takes approximately 30 days to receive an approval notice from USCIS.
If the beneficiary is in the United States and has dependents with him/her, they must be included in the petition by filing Form I-539. This form will accompany Form I-129 and must be completed by the beneficiary's dependents. They will apply for H-4 status if they do not have an independent status themselves (i.e. J-1 or F-1). The filing fee for this application is currently $300 and may be paid by the department or beneficiary.
Only the information of the dependents is entered on this form. Note that the spouse of the beneficiary should sign this form, not the beneficiary. Please be advised that if the spouse is currently in J-2 status and is working, his/her employment must be terminated from the date that the H-4 petition is approved not the date listed on the Employment Authorization Document (EAD).
Departments are advised to send a draft of the Form I-539 and all supporting dependent documents to ISS to be checked ahead of time. Incomplete and inaccurate applications will slow down processing of the H-1B/H-4 case(s).
After all documentation is received, ISS will file the case(s) with USCIS at the Vermont Service Center. From receipt of the petition, USCIS generally takes 90 to 120 days to adjudicate the case(s). For H-1B extensions/amendments/portability cases, the USCIS receipt notice is sufficient for employment to commence or continue. Please allow approximately 4 weeks for the USCIS receipt notice to arrive.
Please Note: If the H-1B application is for the extension of H status or requests the change of a status in the U.S. the H-1B beneficiary must not travel outside of the U.S. while the application is pending. CIS considers the application to have been abandoned if this occurs and a new application must be submitted when the individual returns to the U.S. It is imperative that all H-1B beneficiaries consult with ISS before making travel plans outside of the U.S.
Concluding the Process
Upon receipt of the Form I-797 approval notice from USCIS ISS will contact the department liaison. Copies of the Form I-797 will be provided to the department.
The H-1B beneficiary will be notified and asked to come to ISS to pick-up the original Form I-94 card and to discuss such matters as traveling and obtaining an H-1B visa stamp.
The department liaison should provide the I-797 approval notice to the appropriate person in the business office for completion of appropriate employment documentation.
Please note: If the beneficiary is currently in H-1B status at Purdue and is merely extending that status, work may continue for 240 days beyond the date of the current H-1B provided that the H-1B extension petition has been submitted to USCIS prior to the expiration date. This must be documented by the receipt notice from USCIS, which may take approximately 4 weeks to receive from the date of filing.
This is also applicable to someone in H-1B status who is changing employers. Employment with the new employer may commence upon receipt of the CIS Form I-797 receipt notice. If the application is denied employment must be terminated immediately.
If the beneficiary is changing status from another nonimmigrant status to H-1B he/she may not be employed until the Form I-797 approval notice has been received (see above processing times).