H-1B Application Process

Please work with OISS to determine that H-1B is the proper immigration status to obtain for this worker.  

  1. The academic department must fill out the Employer Questionnaire and submit to OISS to start the process.
  2. Ensure that the employee completes the Employee Questionnaire and submits this to OISS.
  3. OISS will then begin preparing the H-1B application after receiving both completed questionnaires.  If anything is missing or of concern, OISS will contact the department and employee.
  4. OISS will obtain the prevailing wage and file the Labor Condition Application.  If the prevailing wage is obtained through the Department of Labor, this could significantly increase processing times beyond those listed above.  OISS will send a notice of posting to the academic department and Human Resources to post this notice for a minimum of 10 days, as required by law.
  5. OISS will send the application to US CIS and notify all involved.
  6. As communication is received from USCIS, OISS will notify the department and employee (receipt notice with case number, approval notice, any requests for evidence)
  7. Upon receiving the H-1B approval notice (I-797), OISS will inform the employee and hiring department.  The employee must then pick up all documents at OISS in an appointment to learn more about their H-1B status.
  8. If the employee is not in the U.S., the employee must then apply for an H-1B visa stamp at their nearest U.S. Embassy or Consulate.

Processing Time

Please note that the estimated processing time for an H-1B application is 4-6 months from the time the application is mailed. It takes a minimum of 45 days for OISS to prepare the petition to send. If there is a rush on behalf of the department or the employee, premium processing (additional $1,225) is available which reduces the time to 15 calendar days to receive a decision from the time the application is received by Immigration, however, this is in addition to the OISS processing time. Update:  Premium processing has currently been suspended by USCIS. 

If the employee is outside of the U.S., they must also obtain an H-1B visa stamp at their nearest U.S. Embassy or Consulate. More information is available here.

OISS requires a minimum of 60 days processing time prior to sending the petition to US CIS. This is in addition to the 7 months processing time it’s taking for approval with US CIS. You should plan to start this process 8-9 months in advance.  Those who do not yet have H-1B status require the petition to be approved before their first day of employment.

Application Fees

All fees listed below should be payable to Department of Homeland Security or U.S. Citizenship & Immigration Services

U.S. Department of Labor regulations require that employers pay (and not recoup from employees) expenses required for the filing of H-1B applications.
USCIS fees

  • $460: Standard filing fee required for all applications
  • $500 (separate check): Antifraud fee required for new and transfer applications only; not required for extensions
  • $1,225 Update:  Premium processing has currently been suspended by USCIS. (may be combined with $460 check): Premium Processing is an expedited service that is available for H-1B petitions. USCIS guarantees that within 15 calendar days they will issue either a Notice of Approval or a request for evidence. If the USCIS fails to process the petition within 15 days, it will refund the $1,225. Premium processing may be requested simultaneously with the H-1B application or at a later date, if necessary.
  • $370: H-4 dependent (Form I-539) standard filing fee, if dependents are included in the application. All dependents can be included on one Form I-539 with one $370 fee, which should be paid by the employee.

Note:  Be sure to provide your departmental index/account codes when completing the H-1B hiring department forms. OISS will automatically requests the checks for the appropriate filing fees and charge your department accordingly.  You will also be charged for any related Fedex/Shipping charges for the H-1B petition.

 


H-1B Processing Types

Consular Processing

Employees that are not in the U.S and who will come to the U.S. on an H-1B visa to begin the job are designated for consular processing. The H-1B application is filed the same as other types, however the H-1B status is not obtained until the employee obtains the H-1B visa and enters the U.S. An employee can not enter the U.S. more than 10 days before the start date of the H-1B as listed on the I-797 approval notice.
Visas are obtained at their nearest U.S. Embassy or Consulate and placed in your passport.  Visa renewals are not possible inside the United States.  Visa wait times are listed here.
Documents required for obtaining an H-1B visa:

  • Passport valid for at least 6 months into the future
  • Original I-797 approval notice and a copy of the H-1B petition (including I-129 and Labor Condition Application
  • Appointment/Offer letter from St. Thomas
  • If you previously had J status and were subject to the 2-year home residency requirement, present the waiver (I-612 approval notice) issued by USCIS. If you fulfilled the requirement, be prepared to show documentation to prove that you were in your home country for two years.
  • Resume/CV
  • Copy of previous year’s tax return
  • Documents from previous status (I-20s if F1, etc)

*Canadian citizens do not require a U.S. visa to enter the U.S.

Dual intent

Most nonimmigrant classifications require applicants to prove they do not intend to immigrate to the U.S. The H-1B, however, benefits from “dual intent.” This allows a nonimmigrant to use the H-1B visa/status even if steps have been taken towards permanent residence. Dual intent affords the following advantages:

  • An H-1B visa/status cannot be denied because the individual appears to have future immigrant (“green card”) intent.
  • A person can apply for permanent residency while holding the H-1B visa/status.
  • A person applying for an H-1B visa/status does not need to prove intent to return to their home country.

 

Change of Status

Employees already in the U.S. on another nonimmigrant status may be able to change status to H-1B. Employees and departments should consult closely with OISS about the timing of the change of status and the job start date, any international travel during this period, and eligibility factors such as:

  • Whether the employee is subject to the J-1 two-year home country requirement
  • Whether the employee is currently working at St. Thomas, and if so, whether the job title will remain the same or change for the H-1B application
  • Whether the employee has maintained his/her current legal status (this is required to be eligible for a change of status)
  • Travel with Change of Status application pending:  If OISS filed a change of immigration status petition for you, you must not travel outside of the US while the petition is pending. Leaving the country while USCIS is reviewing your petition will cause USCIS to consider your petition for a change of status to be abandoned. Your underlying H-1B petition may still be approved, but you would have to depart the US and apply for an H-1B visa abroad to re-enter the US in H-1B status before you could start your H-1B employment. Once USCIS approves your change of status petition, you may travel internationally. Your H-1B status will take effect on the date that was requested.

Extension

H-1B status may be extended for current St. Thomas employees who have not used the full 6 years of available H-1B status. This is a cumulative total, inclusive of all H-1B employers. Under certain conditions, it is possible to obtain H-1B extensions beyond the 6-year maximum for an individual who has begun the process of filing for U.S. permanent residence. Please consult with OISS about your particular situation.

If St. Thomas files the H-1B extension application before the expiration of the current H-1B, the employee may continue working for a period not to exceed 240 days beginning on the date of expiration of the authorized period of stay.

Travel with an Extension application pending:

  • Traveling while an extension of status petition is pending with USCIS is permissible. Please note that you must be in the US when the H-1B petition is filed with USCIS. You must alert OISS of any travel plans while your H-1B extension is pending with USCIS. If the extension is approved while you are abroad, you must re-enter the US using that Approval Notice. This means the documents may need to be sent to you while abroad. If you re-entered the US on the basis of your old Approval Notice, you would only be admitted until the expiration date of the old H-1B Approval Notice and you would likely have to travel again to have this corrected.
  • If your H-1B extension is pending with USCIS and your current H-1B status has expired, you must not travel internationally because you will need a valid H-1B approval and visa to re-enter the country. If you must travel while your extension is pending and your H-1B status has expired, you will need to remain outside of the US until your H-1B petition is approved.

 

Transfer

Portability is the official term used by USCIS when an employee already holds H-1B status and “transfers” from one employer to another. In order for the employee to begin working for a new employer, that employer must file an entirely new H-1B petition prior to the expiration of the first H-1B, or prior to the employment being terminated, whichever comes first. In most cases, having one H-1B petition approved will not make it any easier to get a second approval. Employees and departments should consult closely with OISS about the timing of moving to St. Thomas and about any travel outside of the U.S. during this period.

An employee may begin working on the requested H-1B start date once St. Thomas files the H-1B petition with the USCIS. It is not necessary to wait for the petition to be approved. Once we are notified that USCIS has received the H-1B petition (and issues a I-797 receipt notice), the employee can begin working.

Travel while changing employers:

  • You may travel while the St. Thomas H-1B petition is pending. However, travel during this period is not recommended as you will need a valid H-1B Approval Notice and visa to re-enter the US. If you have a valid H-1B approval from your previous employer you may use that in conjunction with your St. Thomas H-1B petition and Receipt Notice. Should your previous employer have withdrawn its H-1B petition - which is likely - you cannot use your previous H-1B approval. Therefore, it is strongly recommended that you do not travel internationally during this period as you may not be able to return until your St. Thomas H-1B petition has been approved.

Employer Responsibilities

In order to file an H-1B for a worker at St. Thomas, the University of St. Thomas and the hiring department must understand and abide by the following conditions and requirements:

  1. The H-1B employee will be paid at least the “prevailing wage” for that occupation, as determined by the U.S. Department of Labor.
    • Departments must pay an H-1B employee equal to or greater than the lowest wage paid to other employee(s) doing the same kind of work with the same job title, unless the hiring department provides a written explanation of why each individual in the same job classification is paid more based on one or more of the following criteria: Experience, Qualifications, Education, Job responsibility and function, Specialized knowledge, Other "legitimate business factors" that are accepted or recognized in the industry
  2. A copy of the Labor Condition Application (Form ETA 9035) will be provided to the employee and notification will be made at the place of employment. 
  3. The employing department must contact OISS if a material change occurs in the employee's job (duties, % time of appointment, change/addition of work sites, title, salary, or change of department). OISS will follow H-1B regulations to determine whether no action, the posting of a labor condition application, or a new petition will be required. 
  4. Part-time employment: For any appointment less than 100% time, the employing department must maintain time cards in order to meet U.S. Department of Labor regulations. 
  5. If the H-1B employee is dismissed for any reason by the employer before the end of the period for which employment is authorized, the employer is responsible for the reasonable costs of return transportation of the employee to his/her last place of foreign residence. 
  6. The H-1B employee will not have access to export controlled information. 

The Department Chair / Division Head is required to sign a Certification Statement that will be provided to the department as part of the H-1B process. Failure to comply with these H-1B regulations and related procedures may lead to fines, penalties, revocation of the petition/visa approval, loss of the employee's services and/or immigration violations.