Transcript H-1B Processing for Administrators at USC

H-1B Employment at USC
for Foreign Nationals
Faculty/Staff Visa Services
The University of Southern California
Introduction
Employment-based immigration to the U.S. can be difficult
to understand in depth. H-1B status is governed by several
layers of regulation, and involves many players – you,
your hiring department, FSVS, and several government
agencies.
We have designed this presentation to demystify some of
the “hows” and “whys” of H-1B processing at USC. We
hope that after reading it you can feel comfortable with the
process, and be better informed as processing landmarks
are reached.
What is the difference between a
“Visa” and Nonimmigrant “Status”?
 When we say “Visa” we mean the actual visa stamp laminated
into the passport.
 A “Nonimmigrant” is someone who is in the U.S. temporarily,
who is not a legal permanent resident, and who generally plans
to return to their home country at the end of their stay.
 When we talk about “Status” we mean the conditions under
which the individual is present in the U.S.
 EXAMPLE: a nonimmigrant can enter on an F-1 student visa,
complete their studies and change to another status, such as H1B, without ever leaving the U.S. and obtaining an H-1B visa
stamp.
WHAT IS H-1B STATUS?
Congress created the H-1B category so that a U.S. employer could
hire a foreign national (FN) degreed professional in a specialty
occupation (often in new technologies) without compromising the
U.S. workforce. Hence, both the job and the person must qualify as
H-1B eligible.
H-1B Job
H-1B Candidate
Requires at minimum a Bachelor’s degree.
Possesses at minimum a Bachelor’s degree.
Requires the degree to be in a specific field
(i.e., not general or liberal arts).
His/her degree is in precisely the field
required.
USC, as sponsoring employer, must petition the U.S.
Citizenship and Immigration Services (USCIS), a
division of the U.S. Department of Homeland
Security, for each H-1B we employ.
What is an H-1B:
How long does H-1B status last?
 A person can be in the U.S. on an H-1B for up to 6 years,
in increments of up to 3 years per request.
 This is not a lifetime allotment: To qualify for a second 6
year period, the FN must depart the U.S. and contiguous
countries (Canada and Mexico) for a full 365 days.
 In some circumstances an H-1B can be extended beyond
the 6th year, where a permanent residence filing step is
taken before the person’s 5th year anniversary in H-1B
status.
What is H-1B status:
Is H-1B employment restricted?
 Yes. H-1B employment is specific to:
 Employer
 Title
 Duties
 Salary
 Location
 BUT – one FN can have multiple H-1B employers, as long as each
petitions properly and maintains proper compliance.
For this reason, interdepartmental transfers within USC or even
internal promotions within a department require planning with FSVS
when an H-1B employee is concerned. To avoid violations, an
“Amendment” may be required.
H-1B Case Types
 There are many complex underpinnings to H-1B
regulations. Hence, each situation in which an H1B request arises must be assessed to identify
what type of case it is:
Type
Situation
1
Initial H-1B: Consular Processing
2
Initial H-1B: Change of Status
3
H-1B Extension: Simple
4
H-1B Extension: Amendment of Employment
5
Concurrent Employment H-1B
6
Change of Employer H-1B
H-1B Case Type 1:
Initial H-1B: Consular Processing
 Available where the FN (foreign national) is outside the
U.S. and will wait abroad for H-1B approval.
 Once approved, the FN makes an appointment at a U.S.
Consulate to have a visa stamp processed in his passport
and enter the U.S. in H-1B status.
Typical Case: Professor Grande is a Spanish Economist who
is working for an institute in Switzerland. He needs to
wrap up work there before coming to teach at USC in fall.
Solution: Applying for Consular Processing will allow him
to process a new H-1B visa stamp and make travel plans
once everything is approved.
H-1B Case Type 2:
Initial H-1B: Change of Status
 Requested where the FN is already in the U.S. in another valid, legal
staus such as F-1, J-1, TN, etc., AND they are not in a position to leave
the U.S. and wait abroad for H-1B approval. (Note that if FN entered
on a B or visa waiver, there are restrictions on changing status).
 FSVS must receive request from hiring department far enough in
advance to allow for approval before current status expires.
 Once approved, the person can go on USC payroll without needing to
exit the U.S.
Typical Case: Reza is an F-1 foreign student from Iran, who just
graduated with a PhD in Computer Engineering. The School of
Education would like to hire him on to support their research
operations. His post-completion OPT period will run out in a few
months, but since he is from Iran sending him out of the country will
cause complications for him and the hiring department.
Solution: As long as Reza is in valid F-1 status, that status can be
changed to H-1B.
H-1B Case Types 3-4:
Extending and/or Amending
 Depending on the circumstances, USC can extend until you have been in the
U.S. in H-1B status for 6 years.
 If the conditions of your employment change – your hours, salary, duties,
location or title – USC must file a new petition. At the same time, we can
extend.
 To extend USC sponsorship of H-1B status, please contact the responsible
department administrator 7 to 6 months prior to your expiration to start the ball
rolling. The earlier the process starts, the fewer issues will arise.
 USC will file before your current H-1B expires. This will trigger what is
known as the “240 day rule” for H’s: As long as the extension petition is
received by the USCIS before the current expiration, the person is given 240
days of “grace” to remain living and working in the U.S. while it is pending.
H-1B Case Types 3-4:
H-1B Extensions and Traveling
 Regardless of type of H-1B extension, FSVS strongly cautions
against the FN traveling outside the U.S. while it is pending.
 FSVS cannot guarantee that traveling while an H-1B extension is
pending will not result in complications and delays, even if the FN has
a valid H-1B visa stamp. Complications/delays can arise at:
 Port of entry: because the officer will see a pending extension in
the system and won't necessarily know how to deal with it, OR
 CIS service center: because the officer adjudicating the case can
see in the system that the FN has left the country, but might not be
able to see when, and can issue an RFE (request for evidence), or
otherwise create complications.
H-1B Case Type 3:
H-1B Extension: Simple
 Requested where the department simply wants to extend the H-1B
employment for an additional period.
 Extension requests should be made as early as possible – as much as 6
months in advance – and must be received by the USCIS before the
person expires.
 Once the USCIS receives the extension petition, the person has 240
days of authorization to remain in the U.S. and on USC’s payroll.
Typical Case: Mei has been a Research Associate in H-1B status with
USC for 3 years. The department now wants to keep her on for
another 3 year period.
Solution: Apply for a simple extension before her current H-1B expires.
H-1B Case Type 4:
H-1B Extension: Amendment
 Requested where the person is already working at USC, but is moving
to a different job.
 Not all job movement within USC will need an amendment petition: it
depends on how much change there is according to different factors
that FSVS will assess. The best course is for the department to contact
FSVS immediately.
 Once the USCIS receives the amended petition, the person can take up
the new job – but not before.
Typical Case: Mei has been a Research Associate in H-1B status with
USC for 3 years in Biomedical Engineering. However, now the
Radiology Department at Keck has made her an offer for a better
position with more pay.
Solution: Mei can accept the offer, but the new hiring department must
request an amendment/extension before she can take up the new
position.
H-1B Case Type 5:
Concurrent H-1B Employment
 Requested where the individual is already working for
another H-1B employer and will be working for USC as
well.
 Once the USCIS receives the petition, the person can go on
on USC’s payroll.
Typical Case: Marianne has been a Senior Analyst with a
top financial firm for two years in H-1B status. She would
now like to take up an offer from USC to work on a special
project for the university administration in her spare time.
Solution: USC can file for concurrent employment. She can
start as soon as the USCIS receives the petition.
H-1B Case Type 6:
Change of Employer
 Requested where the individual is leaving their current H-1B employer
to work for USC instead.
 Timing and coordination are critical, since USC’s petition must be
received by the USCIS before the person leaves their current job.
 Once the USCIS receives the petition, the person can go on USC’s
payroll.
Typical Situation: Marianne has been a top Senior Analyst with a top
financial firm for two years in H-1B status. She would now like to
take up an offer from USC to work as a Financial Analyst, full time.
Solution: As long as she can stay with her firm until USC can file a
petition for her, ad she cans tart as soon as USCIS receives it.
Special Issues: H-4 Dependents
 The dependent status available to an H-1B individual’s
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spouse and children is H-4.
If they are already in the U.S., then they can change or
extend H-4 status along with the main H-1B employee.
If they are outside the U.S. with the principal H-1B holder,
they can obtain H-4 status by processing an H-4 visa stamp
directly at a U.S. Consulate abroad.
While H-4 dependents can live and study in the U.S., they
cannot work.
H-4 Spouses who wish to work may seek their own H-1B
sponsorship.
HOW DOES THE
PROCESS BEGIN?
 Once an FN emerges as the top candidate for a job at USC,
the hiring unit contacts FSVS to discuss strategy and get
materials.
 The hiring department administrator then gathers the
required information at the department level and from the
FN, and submits the request to FSVS.
 As processing milestones are reached, FSVS
communicates with the the hiring department
administrator. He/She then communicates with the FN as
appropriate.
Timing an H-1B Request:
General Principles

Estimating timing isn’t always as easy as it seems: Many factors need to be taken into
account:
 Was the packet complete when submitted?
 Incomplete packets are the #1 cause of delay!

What type of H-1B case type is it?
 Different cases present different factors.

Is the FSVS processing queue full?
 Heaviest times of year are May-August and November-December.

What is the person’s situation?
 Do they have a current visa running out?
 Do they have travel plans that need to be accommodated?
 Because of timing or an immigration issue does the person have to leave the
U.S.?
NOTE: Because processing is complex, and involves FSVS, the USDOL and USCIS, it
is only possible for FSVS to give a “best estimate” and NOT a promised date.
Timing an H-1B request:
Estimating processing by case type
H-1B Process Type
Receipt or Approval
required for Payroll?
Processing time:
Premium USCIS Processing
To Receipt*
To Approval*
Initial H-1B: Consular
Processing
Approval
2 months
3 months
Initial H-1B: Change of
Status
Approval
2 months
3 months
Extension: Simple
Receipt**
2 months
3 months
Extension: Amendment of
Employment
Receipt**
2 months
3 months
Concurrent Employment
Receipt**
2 months
3 months
Change of Employer
Receipt**
2 months
3 months

*Average processing times measured from complete submission to FSVS to delivery of document. Individual cases will vary.

**Note that while only the receipt is required for payroll in these cases, if the FN wishes to travel s/he may need the actual
approval notice – especially where the current visa is expiring. Where the FN wishes to travel during processing it is VERY
IMPORTANT to indicate this in the space provided on the prep questionnaires, since FSVS will need to strategize accordingly.
Preparing the Request:
Employee Questionnaire
 Provides FSVS with important information
regarding your immigration, education and work
histories.
 PLEASE BE COMPLETE IN ALL
ANSWERS!
Spell out acronyms – don’t assume we will know what you are
referring to.
Try to put something in each field, even if its simply “0” or “n/a”, so
that we know nothing was skipped.
Required Materials:
Education Documentation
 Since the regulatory prerequisite is that an H-1B job require a degree
in a specific field, and the individual must possess it, we are required
to submit documentation that you hold the required degree.
 If the required degree was issued by a U.S. institution: FSVS just
needs the diploma and/or transcript showing relevant details.
 If the required degree was issued by a foreign institution: FSVS
will need a degree evaluation from a 3rd party evaluator. This is true
even if the degree was obtained in an English-speaking country such as
Canada or Australia.
 If you have not yet completed the required degree: Then we will
have to wait to submit until the degree is completed (i.e. until the
institution’s registrar will issue a transcript showing completion).
Required Materials:
Immigration Documents: I-94
Required Immigration documents will include:
I-94 Entry Card: This is the small white card stapled into the person’s
passport when they enter the U.S. We need clear copies of both the front
and back.
Required Materials:
Immigration Documents: Visa
 By “Visa” we mean the visa stamp laminated by a
U.S. Consulate abroad into the passport:
Required Materials:
Immigration Documents: Passport
 We will also need a copy of the person’s Passport
Biographic Information Page:
Required Materials:
Immigration Documents: Prior Approvals
 Not everyone will have them – mostly found in cases
where the person has already held H-1B status.
What to Expect During Processing
 The basic H-1B processing routine coordinated between FSVS and the
hiring department:
 Dept. Administrator sends prep packet to FSVS. If on review it is
complete and without issues, FSVS begins processing.
 It takes FSVS 4-6 weeks on average to draft and finalize the
petition. If issues arise FSVS will contact the designated Dept.
Administrator.
 Once the Petition is submitted, FSVS alerts Dept. Administrator.
 Once FSVS hears from USCIS, Dept. Administrator is contacted.
 When approval arrives, FSVS preps approval packet for Dept.
Administrator to pick up.
Once USCIS approves the petition
 Once the USCIS issues an approval, it is sent to FSVS via U.S.
Post.
 In some urgent circumstances we have tried enclosing a self
addressed pre-paid Fedex slip to speed return of the approval, but
with mixed results. In our experience, this procedure can’t be
relied on.
 FSVS will prepare an approval packet including:
 Instructions for the department administrator.
 Instructions for the FN.
 The original approval notice.
 A full copy of USC’s petition, including the LCA, for the FN.
 The administrator picks up the packet as instructed:
 The original approval notice is effectively IRREPLACEABLE, so
a receipt must be signed by the administrator.
 Because of problems/confusion in the past, we insist that the
administrator and not the FN pick up the approval notice.
H-1B Status Documents
 Passport & Visa: You must maintain a valid passport at
all times. Your visa stamp is the colored official paper
with your photo pasted into your passport. It is alright if
your visa stamp expires while you are in the U.S.,
however, you will need a new one to re-enter the U.S. in
valid H-1B status after foreign travel.
 I-94 Entry Card: This white card is issued at the point
you enter the U.S. DO NOT DISCARD! It is your only
proof that you entered the U.S. legally.
…more H-1B Status Documents
 I-797 Approval Notice: This original approval notice will
be forwarded to you along with a copy of your petition and
LCA so that you have proper documentation with which to
process a visa to enter the U.S.
NOTE: Some I-797 approval notices will have a new I-94
card as a tear-off section on the bottom. This supersedes
the I-94 card you received upon arrival, however it is
VERY IMPORTANT that you do not discard the I-94 card
you received at entry. It is your only proof that you
entered the U.S. legally.
Proof of your H-1B Status
 Three documents - your passport, visa stamp and I-94 card
– when presented TOGETHER prove that you entered the
U.S. legally and are in legal H-1B status. Copies of all
three should be carried with you at all times.
 These documents should be kept together in a safe place.
 You should also make copies of all documentation for your
permanent records, since they may be needed many years
in the future.
Termination of H-1B
Employment
 Unlike for F-1 Student or J-1 Exchange Visitor status, there is NO
GRACE PERIOD for H-1B’s when their job ends, whether through
termination or resignation.
 If you resign or are terminated, your H-1B status ends on the last day
of actual work (vacation/sick day payouts don’t prolong this).
 Where the employer terminates, they must offer a one-way plane ticket
to the FN’s last place of residence (but not moving costs or
transportation for dependents). If the FN resigns, this is not available.
As an H-1B, what are my
responsibilities and limitations?
 Each H-1B individual is responsible for :
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Making sure status is properly maintained, including during periods of
transition such as job changes.
Making sure that status documents (or copies) are available at all times.
Maintaining a file at home of all related documentation for current and
past status.
 H-1B limitations include:
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Lack of career flexibility: every time a job changes or a promotion
occurs, a new petition must be filed before it can be implemented.
Lack of travel flexibility: Initial H-1B visa stamp processing at a U.S.
Consulate can be lengthy. Some nationalities have a restricted number of
entries.
Temporary by nature: H-1B status is not “permanent”, it is by nature
temporary and limited to the 6 years.
When to contact FSVS
FSVS is a small team of three, handling matters for nearly a thousand
foreign nationals.
Out of necessity, and especially during busy times, we respond to
inquiries by priority according to our knowledge of each situation.
Hence, we can’t necessarily get back to people as quickly as we would
like.
To save time, we highly recommend that you review the FSVS website
and materials and confer with your hiring department administrator
before contacting us. He or she may already have the answers to your
questions.
Contacting FSVS
 Email:
[email protected]
 Mail:
OIS/FSVS, STU 300
University Park
Los Angeles, CA 90089-0899
 Phone:
213-740-2666
 Fax:
213-740-5194
 Website:
http://sait.usc.edu/fsvs/index.html