H-1B Visa Procedures
Payment and Termination
The Department of Labor takes into consideration various factors when determining a prevailing wage. One of the factors is the level of responsibility of a particular position. If the H-1B employee has a great deal of independence (i.e., makes independent decisions that do not require prior approval, is not supervised) and/or supervises others, then the prevailing wage will be higher. If the H-1B employee is directly supervised, has his/her work reviewed and is given close instructions, then the prevailing wage will be lower. When submitting a salary, the hiring department should give a range and an exact figure that will be offered to the H1-B.
If the department is filing a petition for a grant extension, the ending date for the H1-B must reflect the date through which funding is guaranteed. H-1B visas that do not have guaranteed funding will be denied.
Before hiring an H-1B employee, the hiring department should give a letter to the employee stating that they do not have a guarantee of employment. If funding runs out, the University is responsible for paying for the return airfare and the H-1B employee will have to depart the United States immediately upon notification of termination of employment.
The employer is not responsible for paying wages as long as it is a bona fide termination, which requires the employer to notify United States Citizenship and Immigration Services of the termination and provide return transportation costs if necessary.
In the event that the H-1B employee quits, the University is not responsible for the cost of transportation to the H-1B employee's home country.
Spouse and Children
If the H-1B employee has family members or a spouse in the United States or abroad, this information must be included on the H-1B application. If the H-1B employee has more than one H-1B visa (in the event that the H-1B employee has two part-time positions for two different employers), only one petition for the H-4 dependent visa should be made to the U.S. Citizenship and Immigration Services. Unlike the H-1B employee who may hold H-1B visas for each employer, it is not necessary for spouses and dependents to have two H-4 visas. A dependent of an H-1B cannot work.
The University has retained an immigration law firm to handle the H-1B petition process. If the University decides to sponsor the employee for an H-1B, it is responsible for paying attorney's fees, which normally range from $1,500-2,000 per petition. In addition, the University must also pay the H-1B base filing fee of $325 to the U.S. Department of Homeland Security.
There are no refunds for H-1B petitions that are denied.
Filing Time and Quotas
The H-1B approval process takes several months, so a department should plan at least four to five months ahead. Departments planning to hire H-1B employees for the fall semester should ideally begin the process at least one year in advance and no later than January of the preceding year. Processing times are listed on the U.S. Citizenship and Immigration Services website. The California Service Center handles applications from Virginia.
A premium processing service guarantees that applications will be adjudicated within 15 calendar days of receipt of the application for a $1,225 fee. If the service center does not process the petition within this amount of time, it will refund the $1,225 to the petitioner.
Congress has established an annual H-1B cap of 65,000. Additionally, the first 20,000 petitioners who hold U.S.-earned advanced degrees (master's or higher) are considered exempt from this cap. Petitions for such individuals that are filed after the 20,000 exemptions are granted will be counted against the cap. This exemption does not affect the existing exemption from the cap for individuals employed by institutions of higher education.
Foreign nationals employed by institutions of higher education, non-profit research organizations, or governmental research organizations are not subject to the cap. As a result, even if the cap is reached, an employee of higher education would still be able to obtain approval for H-1B visa status.
If the U.S. Citizenship and Immigration Services needs more information, they will issue a request for additional evidence and provide a period for a response to be submitted. They will not deny a petition before the petitioner has an opportunity to provide additional supporting documentation. If the U.S. Citizenship and Immigration Services denies the case after receiving additional information, it is possible to appeal the decision.