H1-B SPECIALITY OCCUPATION
DEFINITION: An H-1B is an alien coming temporarily to the U.S. to perform services in a specialty occupation. A specialty occupation is one, which requires the theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation, and requires completion of a specific course of education culminating in a baccalaureate degree, or higher, in a specific occupational specialty.
The H-1B visa classification is appropriate for professional employment positions, including but not limited to:
Postdoctoral Research Associate
Research Associate
Research Assistant
Assistant Professor
Visiting Assistant Professor
Lecturer/Instructor
Assistant Research Scientist
Research Scientist
Assistant Research Engineer
Systems Analyst
PROCEDURAL STEPS IN OBTAINING H-1B CLASSIFICATION
1. Prevailing Wage Determination: The International Faculty & Scholar Services (IFSS)
will request a prevailing wage
determination from the Department of Labor in Washington, D.C to comply with the requirement that H-1B nonimmigrant will be paid at least the prevailing wage level for the occupation in the area of intended employment or the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment, whichever is higher. The hiring department shall submit a Department Request for a Prevailing Wage Determination, along with a position description, together with all other required
documentation. This includes but is not limited to the minimum degree requirement; number of years of experience required for the position, if any; number of workers H-1B employee will supervise, if any; proposed salary and dates of employment; and location of proposed employment.
2. Actual Wage Determination: The actual wage is defined by the Department of Labor as the wage paid by the employer to all other individuals with similar experience and qualifications as the H-1B worker for the specific employment in question at the place of employment. For example, the wage paid to all postdoctoral research associates the first year after completion of their degrees, working in a particular laboratory in the Chemistry Department, where an H-1B worker has been hired. The hiring department shall complete the Actual Wage Memorandum to verify the actual wage for this position. The
Actual Wage Memorandum * must be returned to IFSS before the Labor Condition Application (LCA) can be filed with the Department of Labor.
The hiring department is also required to provide IFSS with a copy of the
Actual Wage work sheet * containing the data used to establish the actual wage rate for the H-1B employee. The data must show how the wages, arithmetically calculated, for the H-1B employee relate to the wages paid to all other employees with similar experience and qualifications for the specific employment in question at the place of employment. Please note that the work sheet must reflect the steps undertaken by the department in determining the actual wage. Moreover, the data contained in the work sheet must be in accordance with what it is reflected in the Actual Wage Memorandum. IFSS will keep this work sheet with the documents required of employers by the Department of Labor. Should there be an investigation, TAMU would need to produce the payroll records of those similarly employed in a particular department or laboratory. Finally, the hiring department must retain any documentation regarding adjustments made in the pay system during the validity of the LCA.
A copy of such documentation must be forwarded to ISD. The documentation must explain the adjustments and must show that after the adjustments the H-1B employee continued to receive at least the greater of the prevailing wage or the actual wage.
3. Labor Condition Application: After obtaining an approved prevailing wage determination from the TWC, IFSS will complete Form ETA 9035, Labor Condition Application (LCA) and submit 2 copies to Department of Labor for certification of working conditions for H-1B beneficiary.Information needed to complete LCA includes: job title, proposed rate of pay, proposed dates of employment (maximum time for initial H-1B application is 3 years), and location of employment. This information must be included in the job offer letter. The job offer letter must mirror the information contained in the LCA. IFSS will use the job offer letter as the principal tool to file the LCA. The employer must also complete and submit to IFSS the
Labor Condition Statement from Employer *.
4. Posting Requirements A notice of filing the LCA must be posted simultaneously in two conspicuous locations on or before the date the LCA is filed with the Department of Labor. The posting locations will be in the hiring department and the Human Resources Department Employment Office. IFSS will prepare the notices and distribute to the departmental representative for posting for at least 10 business days. After the notices have been posted, they must be returned to IFSS.
5. Payment of Cost of Return Transportation: The H-1B regulations require that the employer submit a signed statement that the employer will pay the reasonable cost of return transportation if the alien is dismissed before the end of the period of authorized employment. The TAMU official with signature authority must sign this statement contained in Form I-129 (H-1B application).
6. Maintaining Documentation:Regulations require that documentation filed in support of an H-1B petition must be available for public inspection within 1 (one) working day of the filing of an application. The documents to be maintained include the H-1B petition, the LCA, prevailing wage and actual wage information obtained from the department and TEC, and the posted notices. This documentation must be maintained for 1 (one) year after the period of employment listed on LCA or if a complaint has been filed, until the complaint is resolved.
DOCUMENTATION REQUEST
Please complete the following forms:
1. Questionnaire
2.
Actual Wage Work Sheet *
3.
Actual Wage Memorandum *
4.
Labor Condition Statement from Employer *
5.
Checklist Request for Employee's Supporting Documentation.
DURATION OF STAY
An initial period of 3 years with an additional 3 years extension.
DEPENDENTS
H-1B dependents are classified as H-4. They are not eligible for employment. If dependents are located in the United States a change of status to H-4 category is completed on Form I-539 and filed together with the principal's H-1B petition. Form I-539 must be completed by the principal and signed by the dependent. If located outside the United States, H-4 category is granted at the United States Consulate.
NOTE: 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.
Before submitting any paper work to IFSS read Instruction concerning Petition process
------------------------------------------------------------------------------
*
Note: Access to some of these
documents is restricted to TAMU
employers or hosts of visiting
scholars only. If you are a TAMU
employer/host and do not have an
authorization password, please
contact IFSS at (979) 862-1719.
