H-1B Training Presentation

International Center

H-1B Process Workshop May 28, 2014

UCI International Center Mission Statement The International Center promotes and facilitates international education by providing services to advance the university's mission and support the academic goals and objectives of international students, faculty, and researchers. The International Center Staff is committed to providing quality services to comply with government regulations and promote intercultural understanding.

UCI International Population 

Researchers, Faculty & Staff: 1277 J-1 Scholars: H-1b Scholars: Other:

958 160 159

International Center Services 

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Visa Document issuance for students and scholars SEVIS compliance Immigration advising for students & scholars Consultation services for departments International Student/Scholar Certificate of Registration Process

Who is Eligible for H-1B Status? 

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A nonimmigrant who holds a bachelor’s degree or higher, in the field required by the position Must not be subject to any bar to obtaining H-1B status, such as 2year home residence requirement

H-1B: UCI Policy 

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Full-time (100%) teaching and/or research appointments for a minimum of one year The position is in direct support of an academic unit The position is a tenure track faculty appointment The J visa is the visa of choice for Postgraduate Researcher/Postdoctoral Scholar appointments Please contact the IC to determine eligibility

H-1B: Policy Exceptions 

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The five-year eligibility for the J-1 visa has been exhausted The current immigration status (already in H-1B or permanent residency pending) makes H-1B the only option “Bypassing J-1 Visa Process” for an academic position that does not meet UCI’s criteria for H-1B sponsorship (subject to fee)

What is the H-1B? 

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A nonimmigrant visa status that allows a nonimmigrant to work temporarily for a specific employer in a “specialty occupation” A “specialty occupation” is one that requires a specialized body of knowledge and requires a bachelor’s degree to enter the profession

H-1B: General Information   

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Employer specific; the petition is position, duty and location specific 6-year maximum (issued no longer than 3 years at a time) Unlike the F and J immigration categories, there is no automatic "grace period" for aliens in H status after their period of authorized stay ends, or after their employment terminates. Although aliens in H status may be admitted to the United States up to 10 days before the petition validity period and up to 10 days after the petition validity period, granting the 10-day post-petition period is entirely discretionary. The period of 10 days after the petition is not automatic, and only exists if the immigration inspector has recorded it on Form I-94. The alien may not be employed during either of these 10-day periods. Regardless of whether the 10 days has been added by the immigration inspector on the alien's Form I-94, the alien is expected to either apply for an extension of stay or to leave the United States on or prior to the I-94 expiration date.

H-1B: General Information Continued  

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Employees must be paid “prevailing wage” or “actual wage”; whichever is higher The actual wage is the "wage rate paid by the employer to all other individuals with experience and qualifications similar to those of the H-1B nonimmigrant, for the specific employment in question." The "actual wage" for LCA purposes is not an average of the wage rates an employer pays to all workers employed in the occupation, but rather a listing of wages paid, usually tending to form a wage range. The prevailing wage is the average rate of wages paid to workers similarly employed in the geographic area of intended employment. Our geographic area, for instance, is the Santa Ana-Anaheim-Irvine area. Dept. must attest that it has met DOL workplace and hiring conditions Failure to meet conditions in LCA may subject UCI to various penalties

If the employer dismisses the H-1B worker prior to the end of the period of authorized employment, the employer must pay 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.

“No Benching” Policy

The No-Benching Requirement and its Exceptions 

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An employer is responsible for paying the required wage to the H-1B employee at all times during the LCA validity period and as specified on the LCA and Form I-129. Even if an employee is "benched," i.e., placed in a non-productive status for reasons such as training, lack of license, lack of assigned work, or any other job-related reason, the employer must still pay the employee the required wage. Furthermore, if the LCA carries a designation of full-time employment, the employer must continue to pay the full amount listed on the LCA even if the employee works less than full time. The University of California system (10 campuses) decided to make the H-1B employees exempt from the furloughs that were introduced several years ago precisely because of the "benching" concern.

Change in Duties or Terms and Conditions of Employment 

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When there is a change in the duties or terms and conditions of employment of an H-1B worker, an amended I-129 petition may be needed. Minor changes in the conditions of employment do not require the filing of an amended petition; the employer may notify the USCIS of such minor changes when filing to extend the H-1B worker's status. Minor changes would include a change of the employer's name, a change of job title with no or minimal changes in job duties, a salary increase (unless it is so substantial that a material change in job duties may be assumed by the USCIS) An amended I-129 petition should definitely be submitted in the following situations: • The H-1B worker's job duties change significantly (e.g. from postdoctoral research to college teaching or from medical research to clinical care) • When a new LCA is required

Occasional Speeches and Lectures and Reimbursement of Expenses 

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The H-1B category allows employment incident to status only with an employer who has had an H-1B petition approved by USCIS on behalf of the beneficiary. Although H-1B nonimmigrants may have the opportunity to make occasional speeches and lectures at other institutions or at conferences, they may not receive compensation for these activities. Although there is no formal written policy or regulation addressing this issue, these activities are not precluded if they are incidental to the alien's employment as an H-1B and, provided further, that the alien is not paid a wage or salary for his or her services and does not derive a monetary or other material gain from those activities. H-1B workers may be reimbursed for "transportation and reasonable, incidental living expenses" incurred in connection with travel to other institutions or conferences.

The H-1B Cap 

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There is an annual fiscal-year limit of 65,000 on the number of new H-1B "slots" available. There are an additional 20,000 “slots” under the advanced degree exemption for a beneficiary who has obtained a U.S. master’s degree or higher. This number is commonly referred to as the H-1B Cap. When the available H-1B numbers have been used for the federal fiscal year, which begins October 1 and ends September 30, the cap is considered reached, and no new cap-subject petitions can be approved until the next fiscal year. If an H-1B petition is revoked because of fraud or willful misrepresentation of a material fact, then that H-1B visa number will be restored to the supply of H-1B numbers available in the fiscal year in which the petition is revoked. An alien is exempt from the H-1B cap if he or she is "employed (or has received an offer of employment) at" one of the following "qualifying institutions": • Institutions of higher education • Nonprofit entities related to or affiliated with an institution of higher education • Nonprofit or Governmental research organizations

H-1B: Departmental Responsibilities     

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Collect required documents Collect required signatures for forms Order checks from accounting Post notice upon request from IC Submit completed packet to IC in timely manner Notify IC of any changes to appt. Notify IC if/when scholar leaves UCI, is granted PR or other change in status

How Do I Begin the H-1B Process Once eligibility is determined by IC:  Visit www.ic.uci.edu to access the H1B documents – always refer to website for current forms/criteria  Follow the hiring dept. guidelines and checklist for dept and prospective scholar  Contact the IC for questions/review

Navigating the IC Website 

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Visit www.ic.uci.edu to access the H1B documents, starting here: “UCI Departments” “H-1B/TN Scholars” “H-1B Process, Forms & Handouts”; “H-1B Training Presentation”

Quick Overview of H-1B Process Before a nonimmigrant may be admitted to work in H-1B status in the United States, these steps must be followed: 

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The employer completes Form ETA 9035 Labor Condition Application (LCA), after complying with relevant Department of Labor (DOL) regulations. The employer files Form ETA 9035 with the DOL. DOL reviews the LCA for completeness, certifies it, and returns it to the employer – this process takes 7 days The employer submits an H-1B petition (Form I-129, the DOLcertified LCA, and supporting documents) to USCIS; Form I-129 contains both the employer's petition and a request for action to be taken on the alien beneficiary's status. USCIS approves the employer's H-1B petition and the action being requested on behalf of the alien (i.e., changing the alien's status to H-1B, extending or amending the alien's H-1B status, or notifying the Department of State of the I-129 approval so the alien can apply for an H-1B visa at a U.S. consulate (unless visaexempt) and enter the United States in H-1B status).

Prevailing Wage Determination Request Process 

*DOL encourages requestors to submit their ETA Forms 9141 at least 60 days before the PWD is needed.

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Current processing time for a determination is 60+ DAYS, although this time-line is subject to change.

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(It may be possible in some cases to request a re-determination from DOL for egregious or incorrect determinations. However, please note that this additional request can add several weeks to the process.) IC suggests that departments initiate H-1B requests six months in advance of the prospective start date if possible, and requires at least 60 days to prepare H-1B petitions for submission to the USCIS.

H-1B CHECKLIST FOR HIRING DEPARTMENTS (updates) 

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UPDATES:

Please ensure Form A, UCI Dept Request for H-1B Petition Form, is completed by the employee and not the dept., and scan to me for eligibility, before proceeding with the additional H-1B paperwork; Please submit the job ad that was posted for the position, along with the 9141 prevailing wage request form; Please provide an educational credentials equivalency evaluation, (an analytical report which determines the equivalency in the US educational system of a candidate's foreign academic and professional credentials); (i.e., Trustforte Corp) Please provide degree transcripts if available

Procedures for H-1B Visa Application Handout

Four Types of H-1B Applications & Processing Times    

Consular processing: 6 months prior to departure from home country Change of status (inside the US): 6 months prior to appt start date Extension of status (inside the US): 3 - 6 months prior to expiration of current H-1B Change of employer/Transfer (inside the US): 3+ months prior to begin date

*Premium Processing reduces processing time*

Employment Limitations  

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Can only work for petitioner Can only accept payment from petitioner May not begin employment with UCI until H-1B approval received (unless currently holds a valid visa status that permits employment)

240-Day Rule: Eligibility to Continue Employment While Extension is Pending 

An H-1B alien for whom the employer has filed a timely application for an extension of H-1B stay can continue employment for the same employer while the request for extension of stay is pending with USCIS, for a period of up to 240 days beyond the expiration of the prior period of authorized stay.

Changing H-1B Employers 

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Once an H-1B worker is in the U.S., he or she may decide to change employers. This is sometimes referred to as a "transfer" or "sequential employment." The procedure for a change of employer is identical to that undertaken by the original petitioner. A new prevailing wage, certified LCA and approved I-129 petition for new employment (checked at Part 2, item 2(a)) and extension of stay (checked at Part 2, item 4 (c)) must be obtained before the H-1B worker begins working for the new employer. Evidence of prior H-1B status must be included in the I-129 petition, and USCIS may want to see evidence such as W-2 forms, paycheck stubs, or wage and earnings statements, showing that the H-1B worker was in fact employed by the prior petitioner and otherwise maintaining status.

Resigning Prior to Change of Employer 

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The H-1B category is not set up to accommodate the "real-world" practice of changing employment. The validity of an H-1B worker's nonimmigrant status depends upon engaging in the employment described in the employer's H1B petition. There is no real "grace period" recognized in H1B status, apart from inferring one from the "up to 10 days after the validity period ends". Because of this, an H-1B worker who resigns his or her position prior to the new employer's filing a new I-129 petition might be seen by USCIS as being in violation of his or her H-1B status, and therefore ineligible for an extension of stay.

Portability of H-1B Status 

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Nonimmigrants currently in H-1B status with one employer can begin employment with a new employer as soon as the new employer files a non frivolous I-129 petition for new H-1B employment, under the law's H-1B "portability" provisions. The new employer and beneficiary do not have to wait for the new petition to be approved for the new employment to begin. If the new petition is denied, however, "portability" work authorization is automatically terminated. To qualify for H-1B "portability" employment, the nonimmigrant must: • Have been previously issued an H-1B visa or otherwise provided H-1B nonimmigrant status; • Have been lawfully admitted into the United States as a nonimmigrant; • Not have engaged in employment without authorization since that admission; and • Be the beneficiary of a non frivolous I-129 petition for new H1B employment filed with USCIS before the expiration of the "period of stay authorized by the Attorney General."

Continued Validity of H Visas After Employer Change 

The current DHS and DOS policy is that an H-1B nonimmigrant visa remains valid during its validity period regardless of a change in the beneficiary's employer. As long as the alien remains in H-1B classification, the visa is considered to be valid up until the date of its expiration. An H-1B nonimmigrant who follows USCIS procedures to change employers in the United States may use the previously issued visa to apply for readmission to the United States if it is still valid. The H-1B worker should present the H-1B approval notice for the new (current) H-1B employment upon reentry.

Travel Under the H-1B Portability Provisions   

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Be otherwise admissible. Unless exempt, be in possession of a valid, unexpired passport and H-1B visa. Document that he or she was previously admitted as an H-1B or otherwise accorded H-1B status, with a copy of the previous Form I-94 or I-797 approval notice showing the petition validity dates. Document that a new H-1B petition was filed on his or her behalf, before the expiration of his or her prior period of H-1B stay. This can be done by showing the I-797 receipt notice, in combination with the documentation shown in item 3. If the applicant does not have Form I797, and a query of CLAIMS shows no evidence that a new petition has been filed, the applicant will not be admitted.

What Are the Fees Associated With the H-1B?  

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Form I-129, $325.00, employer expense Fraud Prevention & Detection Fee (if applicable), $500.00, employer expense Form I-539 (if applicable), $290.00, employee or employer expense Form I-907 (optional), $1225.00, employer expense Exception “bypass J-1” Fee (if applicable), $1200.00 recharge to the dept. Recharge to dept for H-1B Processing Services, $500.00 Recharge to dept for TN Processing Services, $250.00

Dependent Family Members (H-4 Status)  

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Inside US, may apply for extension or change of status (on Form I-539) Outside US, no I-539 required; can apply for H-4 visa at Consulate, together with H-1B or on own with H-1B documentation and proof of familial relationship H-4 nonimmigrants cannot be employed in the United States. If an H-4 dependent qualifies for specialty employment in his or her own right, a change of status to H-1B is necessary before such employment may be undertaken. H-4 dependents may study in the U.S., full- or part-time, but the duration of their stay is dependent on the H-1B's period of stay. Dependents should weigh the benefits of changing their status to F-1 versus remaining in H-4 status. H-4 dependents are not subject to the F-1 requirement to pursue a full course of study, but they are not eligible for F1 benefits such as on-campus employment and practical training.

H-1B Travel Requirements Contact IC for review of travel documents, discussion of visa process, or travel risks  Complete IC TRAVEL FORMhttp://www.ic.uci.edu/Forms/TravelForm1 .pdf  Contact Consulate for appointment  After return, provide good quality copy of electronic Form I-94 and visa stamp to IC *Timing uncertain in visa issuance, depending on post and security clearance* 

Dual Intent in the H-1B Category 

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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 United States. That being the case, 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.

The Role of the U.S. Consulate in the Nonimmigrant Visa Process U.S. consular offices are part of the Department of State, and are under the direct supervision of the U.S. embassy in their respective country. The visa section of a U.S. consular office is staffed by career Foreign Service Officers. The principal role of a consular officer in the nonimmigrant visa issuance process is to decide if the applicant is eligible for a visa  The consular officer has discretion to require whatever evidence he or she feels is necessary to demonstrate an applicant's eligibility for a nonimmigrant visa. Consular officers operate under guidelines furnished by the Visa Office of the Department of State, but they retain discretionary authority to determine the facts of a given case. If a consular officer has reason to believe that a visa applicant is not a bona fide nonimmigrant, the visa application may be denied.  DOS Visa Wait Times http://travel.state.gov/visa/temp/wait/tempvisitors_wait_resu lt.php?post=Beijing&x=72&y=14 

Security Advisory Opinions (SAOs)    

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See NAFSA hand-out Security related checks & clearances Have created significant delays Technology Alert List, Critical Fields of Study Once requested, a University has little influence and nothing can be done to expedite the processing of a SAO Scholars should factor possible delays into their travel arrangements if applying for a visa

H1B Travel Restrictions 

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Travel outside US not permitted during the change of status process; viewed as abandonment Travel outside US allowed while an extension pending, but must be present in US at time of filing Must have valid H-1B approval notice to travel abroad, employment verification letter, valid passport and valid H-1B visa stamp

Automatic revalidation of visas

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Generally, an alien must present a valid, unexpired visa in the category for which application for admission is being made, each time he or she enters the United States (unless exempt from the visa requirement , such as a Canadian citizen). If an alien's nonimmigrant visa expires while he or she is in the United States, or if an alien changes his or her nonimmigrant status in the United States, the next time they travel abroad they must obtain a new visa in the proper category in order to be readmitted to the United States. An exception to this rule exists for nonimmigrants who travel for less than 30 days solely to Canada or Mexico, (or, in the case of F, J, and Q-2 nonimmigrants only, to Canada, Mexico or "adjacent islands other than Cuba“). The visas of such aliens are considered to be "extended" to the date of re-entry, eliminating the need to obtain a new visa at a U.S. consulate before that particular reentry. This benefit also applies to nonimmigrants who have changed nonimmigrant status in the United States, whose visa is still in the category in which they had entered the United States. In that case, the visa is considered "converted" to the proper visa category as well as "extended" to allow re-entry. To determine eligibility for automatic visa revalidation, and travel instruction, scholars are encouraged to set up an appt at the IC.

17-Month OPT Extension E l i g i b i l i t y Re q u i r e me n t s 1. Your CIP code (Classification of Instructional Programs) which is the accepted federal government statistical standard on instructional program classifications* will verify if your major qualifies for the 17 month OPT extension. This code is displayed on the third page of your I-20 as of Spring 2008. 2. Students currently on OPT who hold a STEM degree (Science, Technology, Engineering, Mathematics) are eligible to apply for a 17month OPT extension for a total of 29 months. 3. Additional requirements: The student’s employer must be registered in the government sponsored E-Verify program The employer agrees to report to the Designated School Official (IC) any student’s change of name or address and interruption of employment The student must agree to periodically report to the IC Student must be in the 12 month period of OPT Employment must be directly related to the student’s major area of study Successful completion of a bachelor’s master’s or doctoral degree on the DHS STEM list Has not received a 17 month OPT extension after earning a STEM degree The OPT 17-month extension is another option for departments to consider, before requesting a change from F-1 to J-1 or H-1B.

TN Requirements & Process Brief Overview  

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TN (Trade NAFTA) To facilitate entry of Canadian and Mexican citizens to US to engage in professional business activities on a temporary basis Minimum of Bachelor’s degree required Profession/occupation specified in NAFTA treaty (Appendix) Issued in increments of up to 3 years at a time for Canadian nationals and up to 1 year at a time for Mexican nationals

O-1 Requirements and Process Brief Overview 

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The O nonimmigrant visa provides admission to persons with extraordinary ability in the arts, sciences, education, business or athletics, which has been demonstrated by sustained national or international acclaim Filed by UCI only when no other visa option exists; by exception only Labor intensive application process, currently outsourced to immigration attorneys

Permanent Residence 

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An immigrant is a foreign national who has been authorized to live and work permanently in the US Several categories for granting permanent residence based on employment skills: outstanding professor/researcher (requires 3 years experience in field); permanent labor certification (filed within 18 months of job offer letter)

UCI Permanent Residence Policy 

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UCI entered into agreement with Seyfarth, Shaw LLP For Regular Rank Faculty, Academic Affairs will cost-share with school “Sponsorship Authorization Request Form, Regular Rank Faculty”, AP-85, (AP websites) “Sponsorship Authorization Request Form, Academic Appointees (Other Than Regular Rank Faculty)” AP-86, (AP websites) Instructions for Processing Permanent Residence Authorization: http://www.ap.uci.edu/Policy/permres.html

Essential Features of the LPR Options Available 

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EB-1 Extraordinary Ability • Individual who is one of that small percentage who have risen to the very top of the field of endeavor, as shown by sustained national or international acclaim and recognized achievements; individual can self petition. Alien must prove, however, that he or she will continue to work in the area of expertise. EB-1Outstanding Professor or Researcher • Professor or researcher who is recognized internationally as outstanding in the academic field, and who has at least 3 years of teaching or research experience in the field. Must have offer of a tenured or tenure-track teaching or permanent research position. EB-2Advanced degree holder • An individual holding a degree above a bachelor's degree, which is required for the job offered. Must have offer of a permanent full-time position which requires an advanced degree or equivalent. Standard labor certification required; special handling procedures available to college teachers. • With National Interest Waiver...No job offer or labor certification is required if it is established that an exemption from those requirements would be in the national interest

Acquiring Lawful Permanent Residence 

After an I-140 has been approved in an employment-based preference category, the remainder of the lawful permanent residence (LPR) process is the same for all aliens. An alien has two processing choices:

• Individuals who choose to acquire lawful permanent residence inside the United States apply for adjustment of status , by filing Form I-485, Application to Register Permanent Residence or Adjust Status; or • An alternative to an application for Adjustment of Status is immigrant visa processing at a U.S. consular office in the individual's home country. Like adjustment of status, consular processing of an immigrant visa is a personal application by the alien, not an institutional or employer responsibility.

Important Reminders 

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New , Change of status (COS) and Extension of Status (EOS) cases are taking a minimum of 2+ months for processing at CA Service Center (without premium processing) Please submit all cases at least 5 months in advance of anticipated UCI start date (remember: we can start 6 months in advance!) Please use most up to date forms by visiting the website for the current H-1B documents and instructions Please notify IC immediately of any changes to terms or conditions of appt. to determine if an amended petition is required Please advise all H-1B scholars to check with the IC prior to any international travel Please advise all H-1B scholars to check with the IC prior to departing UCI to take another position, and/or to return home Please advise all H-1B scholars to check with the IC regarding any change in their status

Scholar Check-In Procedures 

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Once a scholar has checked in with the International Center and completed the form below, status is verified and scholar will be given Certificate of Registration to present to dept so employment paperwork can be processed. http://www.ic.uci.edu/Forms/ScholarChec kInForm1.pdf

International Student/Scholar Certificate of Registration 

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This form certifies that the student/scholar has registered (checked-in) at the UCI International Center. His/Her immigration status has been verified. Employment paperwork can now be processed by the hiring department. S/He is now able to apply for a Social Security Number (if applicable). For F1 only: If student intends to apply for a SSN, hiring department must complete the Social Security Verification Form and obtain a signature from the International Center.

FIELDS ON CERTIFICATE OF REGISTRATION:  Name of Student/Scholar (Last, First);  Visa Type(F1, J1, H1B, TN, or other);  Registration Verified By: (name of IC staff member);  Today’s Date (MM/DD/YYYY);

Important Information on the IC website 

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All formshttp://www.ic.uci.edu/index.php Sign up for the dept. listserv: http://ic.uci.edu/departments/index. php IC staff contact information: http://www.studentlife.uci.edu/staff. php#icstaff

Questions/Discussion