1.
Labor
Certification For The Permanent Employment Of
Foreign Nationals Questions (Link)
2. H-1B Frequently Asked Questions:
1.
What are the
departments’ responsibilities?
2. What is the lead
time?
3.
Definition of H-1B
Petition
4. What is the maximum
length of stay?
5. What are the
prevailing wage and actual wage?
6. What is a labor
condition application?
7. What are the fees
for applying?
8. What is the
questionnaire?
9.
I’ve just been
offered a job at Texas A&M University. What type
of visa status should I use?
10.
What are the
differences between the J-1 and the H-1B?
11. Why is the H visa
apparently exempt from requirements that are
enforced for other visa types?
12. Who can use H1-B
status?
13.
What is H-4 status?
14. Glossary of
Useful Immigration Terms
1. What are the departments’
responsibilities?
·
Pay at least 100% of the prevailing wage
·
Post the Labor Condition Application for 10
business days in a conspicuous location at the
site of employment where it can easily be seen
by workers
·
Notify IFSS if there are material changes to the
position such as a change in job title, duties,
locations of employment, salary increases, etc.
·
Provide return transportation if the H1-B employee
is terminated prior to the expiration of the
H1-B petition
·
Notify IFSS when the H1-B employee leaves
2. What is the lead time?
Please submit required documents at least 6
months before the intended start date of the
program for someone who does not currently hold
H1-B status and 3 months for someone currently
in H1-B status.
3. Definition of H-1B Petition
USCIS (United States Citizenship and Immigration
Services) defines an H1-B occupation as a
“specialty occupation” which requires the
theoretical and practical application of the
body of highly specialized knowledge, and the
attainment of a bachelor’s or higher degree in
the specific specialty as a minimum for entry
into the occupation in the United States. H1-B
status can be used to employ nonimmigrants
temporarily in faculty, staff, and research
positions.
4. What is the maximum length of
stay?
6 years, granted in any time increment up to 3
years per petition.
5. What are the prevailing wage
and actual wage?
The prevailing wage is a Department of Labor
determination of the average wage earned by
employees with comparable jobs working in the
area of intended employment for a specific
geographic area.
The actual wage is the amount that falls within
the range of wage rates paid by the employer to
its workers who have similar experience and
qualifications to those of the H-1B for the
specific position.
If the actual wage is higher than the prevailing
wage, then the employer must document the
factors that were used to arrive at the salary
being paid to the H-1B foreign national. These
factors can include experience, qualifications,
education, job responsibility and function,
specialized knowledge, and other legitimate
factors. If the actual wage paid to the H-1B
employee is at the lower end of the range of the
wages paid to the rest of the workers who have
similar experience and qualifications, the
employer must justify in writing the reasons for
the wage differentiation.
6. What is a labor condition
application?
The LCA is a document submitted to the
Department of Labor by the employer presenting
the salary offered in the stated position, the
prevailing wage, length of employment offered,
and work location. The employer also makes
attestations that it will provide working
conditions for nonimmigrants that will not
adversely affect the working conditions of
workers similarly employed. It must be posted
in two (2) conspicuous locations, typically the
hiring department and the human resources
department simultaneously for a period of 10
consecutive business days. Proof of posting must
be returned to IFSS at the end of the posting
period.
7. What are the fees for applying?
For every H-1 petition filed, there is a
standard filing fee. If the employer has never
filed on behalf of the particular beneficiary
before, a Fraud Prevention and Detection Fee is
required. An additional fee is required for
expedited processing at USCIS (known as premium
processing). All fees must be made payable on
separate checks to the “Department of Homeland
Security”.
Fees are set by the US Department of Homeland
Security and are subject to change. Check with
IFSS for the most up-to-date fees.
8. What is the questionnaire?
The questionnaire is our means of collecting
important data necessary to assist us in
accurately preparing petitions. It should be
completed by the prospective H-1B employee. A
complete questionnaire will help eliminate
potential delays in filing a petition.
9. I’ve just been offered a job at
Texas A&M University. What type of visa status
should I use?
Usually the selection of visa status comes down
to J-1, H1 and TN. However, F-1 students on
Post Completion Optional Practical Training can
continue to work while in F-1 status until the
expiration date of the EAD card, but should take
timely steps to change their visa status before
the expiration of their practical training.
While there are many other types of nonimmigrant
statuses, they are not used at Texas A&M
University because they are inappropriate for
the purposes of this academic institution. IFSS
will assist the hiring department in selecting
the appropriate nonimmigrant status.
10. What are the differences
between the J-1 and the H-1B?
The J-1 is the nonimmigrant category used by the
U.S Department of State to operate its Exchange
Visitor Program (EVP). The EVP is intended to
foster international social, scientific, and
cultural exchange. Many, if not most, program
sponsors are universities where the environment
for exchange is acknowledged to be highly
rewarding and productive. Large corporations
also maintain programs, and some organizations
are chartered specifically to host exchange
visitors on a contractual basis. Program
sponsors issue the DS-2019. The DS-2019 is
presented to the U.S. Consul in a prospective
visitor’s home country for issuance of the J-1
visa in the passport.
The J visa program may impose a requirement on
the user to return to the home country, in the
event that the country appears on the skills
list, or in the event money from the visitor’s
country or the United States was used to fund
the exchange program.
The dependents of the J-1 (J-2s) may apply for
work authorization while dependents of H-1B
employees (H-4s) may not.
There is a nominal five year limit on the use of
the J program. The H-1 is limited to 6 years in
most cases.
H-1B is the nonimmigrant category used for
foreign workers coming to the United States to
work in a temporary position in “specialty
occupations” A “specialty occupation” is that
requiring at minimum a Bachelors degree and
special preparation for the job offered. An
employer wanting to hire an H-1B worker must
file a petition with the Department of Homeland
Security. The petition has to demonstrate that
the job in question is one that requires special
preparation, and that the person filing has
attained a bachelor’s or higher degree. When
the USCIS responds affirmatively to an H-1B
petition, an “approval” is issued to the
employer.
The H-1B visa holder enjoys “dual intent”
provisions that exempt him or her from the
presumption of immigrant intent. J-1 holders
must prove their intent to return home when
applying for a visa.
11. Why is the H visa apparently
exempt from requirements that are enforced for
other visa types?
Congress declared that the H status is a dual
intent classification. As such, the test of
immigrant intent is not necessary and is not
relevant to an application for an H visa.
12. Who can use H1-B status?
At Texas A&M University or A&M system members,
H1-B status is regularly petitioned for on
behalf of the postdoctoral scholars, research
staff, academic staff, and faculty members, both
visiting and regular. In essence, anyone who
meets the criteria noted above and who is paid
in wage by Texas A&M University or one of the
A&M system members for services rendered may be
eligible for University sponsorship.
13.
What is H-4 status?
H-4 status is granted to qualifying dependents
of H-1B holders. This status can be requested
from Department of Homeland Security by filing
the form I-539 if the dependents are present in
the U.S. Please note that IFSS will not review
nor recommend on the I-539 filings. IFSS will
only enclose to the I-129 petition the
documentation provided by the employee as a
complementary service. Advice on completion of
the I-539 and supporting documentation should be
obtained from an immigration attorney.
For qualified dependents outside the U.S., H-4
status can be obtained at a U.S. consulate by
presenting proof of the employee’s H-1 status
and proof of dependent status. H-4 applicants
outside the U.S. should consult the website for
the consulate they will visit for any required
documentation.
14. Glossary of Useful
Immigration Terms
USCIS
–United States Citizenship and Immigration
Services. This is a bureau under the Department
of Homeland Security that deals with
non-immigrant and immigrant petitions.
Academic Training
- Similar to practical training, but for J-1
students. Please note that J-1 research scholars
are not eligible for this.
Adjudication
-The USCIS procedure of considering and
processing applications and petitions.
Alien
- Anyone who is not a U.S. citizen or national.
AR-11 - Form required by USCIS to report a change of U.S. address of a foreign
national.
Citizen
- With few exceptions, anyone who was born on
U.S. soil as well as “naturalized” citizens.
Citizenship can be derived from
parents/ancestors as well, regardless of place
of birth.
Dependent
- The spouse or children (unmarried and under 21
years of age) of an applicant.
DS 2019
- A State Department Certificate issued by
sponsoring institutions such as Texas A&M
University. It can be used by students and
postdoctoral scholars for a relatively wide
variety of activities, although sponsors usually
are authorized for only a few. Students are
allowed to remain as long as needed to finish a
degree program, but scholars and professors may
stay for only five years.
E-3 -
A visa category designated for nationals of
Australia coming to the U.S. to perform services
in a “specialty occupation” under the
Australia-United States Free Trade Agreement.
EAD
- Employment Authorization Document; a card
issued by USCIS to qualified applicants who have
requested work authorization.
Green Card
- The document issued by USCIS to permanent
residents as evidence of their status.
I-129
- Form which employers submit to USCIS to
request a change to, extension of, or amendment
to H-1, TN, or E-3 status.
I-140
- USCIS form for Petition of Immigrant Workers
on which employment-based immigrant petitions
are filed.
I-94
- 3x4 white card usually stapled into an
individual’s passport when he or she is admitted
to the US. This document is a record of the
individual’s entry to the US and shows the type
and expiration date of their status.
Notice of Action
- Issued by the USCIS after that agency’s
adjudication of a petition or application.
Optional Practical Training
- A period of work authorization granted
subsequent to an F-1 student completing a degree
program. Proof of work authorization is
evidenced by a valid EAD.
Permanent Resident
- An alien the USCIS has given the right to
remain in the U.S. permanently.
SAF -
Status Acknowledgement Form is a TAMU internal document issued by IFSS
that affirms the foreign national’s status and
the validity dates of such status for the
departments. It summarizes the foreign
national’s responsibilities and outlines the
employing/hosting department’s responsibilities
as well.
TN
- A visa category developed as part of the North
American Free Trade Agreement (NAFTA). It is
specifically for citizens of Canada and Mexico
and is intended to facilitate entry to the U.S.
for the purpose of engaging in professional
business activities on a temporary basis. Only
the occupations specified in Appendix 1603.D.1
of NAFTA may serve as the basis for employment.
Two Year Rule
- Also known as the two year residence
requirement, this is a restriction applied to
certain J-1 exchange visitors who meet
conditions defined by the State Department. The
conditions have to do with funding, country of
origin or type of activity undertaken while in
J-1 status. The restriction prevents these
visitors from changing status within the U.S.
It also prevents them from securing entry visas
in the H-1, L-1 or immigrant categories.
