FN1. Mark B. Rhoads & Helen L. Konrad, Immigration Law: Issues for Faculty and Staff, 2007 Update NACUA, 2007, at 1. Other types of immigration status sometimes used for university employees are: B-1 status for paying honoraria to foreign nationals lecturing or attending meetings of university boards or committees; F-1 student status for allowing students to obtain practical training in their fields of study; J-1 status for exchange visitors, short-term scholars, medical residents, and others; O-1 status for individuals of extraordinary ability; and TN status for citizens of Canada and Mexico under the NAFTA Treaty.
FN2. The approval also specifies an ending date, except in the case of
F-1 (student) or J-1 (trainee) status. Instead
of a specific ending date, students and trainees generally have permission to remain in
H-1B classification may be granted to an alien who will perform services in a specialty
occupation which requires theoretical and practical application of a body of highly
specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent
as a minimum requirement for entry into the occupation in the United States, and who is
qualified to perform services in the specialty occupation because he or she has attained a
baccalaureate or higher degree or its equivalent in the specialty occupation. 8
FN5. First, the
employer must submit an online Labor Condition Application (LCA) to the
Department of Labor (
Once the LCA application has been certified, the university must fill out and submit to USCIS the Petition for Nonimmigrant Worker (Form I-129), available at http://www.uscis.gov/files/form/i-129.pdf, with the H Classification and H-1B Data Collection and Filing Fee Exemption Supplements attached. These forms provide information about the employer, employee and position to be filled, and help the employer determine whether it is exempt from a portion of the filing fees. The university must also post a notice for 10 days announcing that it is hiring an H-1B worker in two conspicuous places.
current fee for filing the Form I-129 is $320, plus an additional $500 fraud
detection fee. These should be filed as
two separate checks, rather than a single check for $820.
USCIS charges $1,000 for expedited processing, which is necessary only if
the application must be processed within fifteen (15) days. 8
FN7. A foreign nationals H-1B application will be denied if the person has failed to maintain immigration status. A person fails to maintain status if he has overstayed or otherwise violated his status. If he has overstayed his F-1 or any other status, he will have to leave the United States and obtain an H-1B visa in his home country before he will be able to return to the United States in H-1B status. If he has overstayed between 181-364 days, he is statutorily barred from returning to the U.S. for at least three years. If he has overstayed by a year or more, he is statutorily barred from returning for at least ten years. Even if his overstay is less than 180 days, he must demonstrate good cause for the overstay to the consular officer, or the officer may refuse to exercise the discretion necessary to issue a visa. See INA § 212(a)(9)(B)(i).
FN9. For example, an H-1B employee may work as a visiting professor at a foreign university, staying outside of the United States for six months or so. If he keeps careful track of this time, he will be able to demonstrate that even though USCIS authorized him to be in H-1B status for a total of six years, he in fact was only present in the United States in H-1B status for five and a half years. He will then be eligible for an additional six months of H-1B status after the ostensible six year period.
status can be extended in one-year increments beyond the normal six-year maximum if the
employee has started the permanent residence application process at least 365 days before
his sixth anniversary in H-1B status. See Section 106(a) of the American Competitiveness
in the Twenty-First Century Act of 2000 (AC21), Pub. L. No. 106-313, §§10116, http://history.nih.gov/research/downloads/PL106-313.pdf
114 Stat. 1251, 125162 (8 U.S.C. 1184 note).
If the employee cannot complete the permanent residence process
because he is from a country such as China or India that is affected by quotas, the H-1B
status can be extended in three year increments. See
FN11. H-1B portability has limitations. A provision unique to H-1B extensions allows the employee to work for 240 days while awaiting approval of the new employers H-1B petition, with no adverse immigration consequences. But, if USCIS ultimately denies the H-1B application, the employee will be deemed to have been out of status during the 240 days, and must immediately leave the country. While this innocent overstay is not be a bar to re-entry, it will always be an issue listed in the employees immigration history, and will cause inevitable delays during the employees consular processing and return from international travel.
FN13. See discussion of various immigration documents under Hiring Foreign Faculty, supra.
FN14. This is particularly true for individuals with degrees in the fields of chemistry or engineering, for whom security checks by the U.S. consulate, called Visa Mantis checks, can delay the issuance of visas for weeks or sometimes months.
FN15. A foreign national can hold both adjustment applicant and H-1B status at the same time. A university might adopt this belt and suspenders approach to ensure that the foreign national remains legally employed. But this approach can be costly because the regulations require the university, not the faculty member, to absorb the cost of renewing the faculty members H-1B status during the pendency of the adjustment application.
FN17. 20 CFR § 665.731(c)(7)(i); 8 CFR 214.2(h)(11)(i)(A); see also Administrator, Wage and Hour Division v. Ken Technologies, Inc, 2003-LCA-00015 July 18, 2003.
FN21. Canadians do not have to get a visa in advance. They can apply at the U.S. port of entry, which is actually in Canada at certain Canadian airports, with an employment offer letter, detailed job description, and documentation of the required education and experience. Mexicans must take the extra step, before they travel, of obtaining a visa from one of the U.S. consulates in Mexico. 8 CFR §214.6(d) (3).