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Duration of the H-1B Category

The H-1B category allows a foreign national to be employed in the United States by a specific employer, for a specified period of time, in a specific position, in a specific location. Although an individual may hold H-1B status for up to six years, the immigration service will only grant this status in increments of up to three years at a time. At the end of the six year period, in order to continue his/her employment in the US, the foreign employee will have had to obtain US permanent residence (green card) or will be forced to depart the US for at least one year before being eligible for a new H-1B status.

Dual Intent Nature of the H-1B Category

The H-1B category is different from most others, especially F (student), J (Exchange Visitor), and B (visitor). Unlike most other non-immigrant categories, the US Government allows "dual intent" for H-1B holders. Most of the 45+ non-immigrant categories require a foreigner to maintain a permanent residence in his/her home country and to verify that he/she has no intention to abandon that residence or to apply for US permanent residence. Foreign workers in H-1B classification are not held to these requirements and are permitted to make an application for US permanent residence while maintaining H-1B status. This is a very important distinction, especially for colleges and universities with foreign workers in tenure-track faculty and permanent research positions, as it permits the university to sponsor the foreign worker for US permanent residence.

Eligibility Requirements

Under most circumstances, H-1B regulations do not currently require an employer to have advertised the position prior to offering the position to a foreign national. (UNH Human Resources and Affirmative Action policies, however, may require a search to be completed for these types of positions -- please check with Human Resources).

H-1B status is governed by federal laws and regulations, with requirements for eligibility. The position offered must require, at a minimum:

• completion of a US bachelor’s degree or a foreign degree equivalent to a US bachelor’s degree; or
• a combination of education, specialized training, and experience which are equivalent to a bachelor’s degree or higher degree.

The foreign employee must be in possession of at least the minimum requirements for the position. In some cases, the employee will have to have his/her academic or professional credentials evaluated by an outside credentialing agency recognized by the immigration service. If state or federal licensing or certification is required for the position, the foreign employee must hold the specific license or certificate.

Restrictions

Return Transportation:
In the event an H-1B worker is dismissed from employment prior to the end of the authorized stay requested by the employer, regulations require that the employer pay reasonable costs to return the employee to his or her last place of residence outside the US. 

Labor Condition Application Attestations:

H-1B regulations also protect US workers and prevent the exploitation of foreign workers by requiring that an employer file a Labor Condition Application (LCA) with the US Department of Labor (DOL). The employer must attest to the following on the LCA:

• it will pay the non-immigrant worker at least the local prevailing wage or the employer’s actual wage, whichever is higher, and will pay the employee for any non-productive time;
• it will offer the non-immigrant worker benefits on the same basis as US workers;
• it will provide working conditions for non-immigrants which will not adversely affect the working conditions of others similarly employed;
• there is no strike, work stoppage, or lock out in the occupational classification at the place of employment;
• it will provide notice to the union (if any) or other workers of its intent to hire a non-immigrant worker;
• it will provide a copy of the LCA to the non-immigrant worker prior to the beginning of his/her employment.

Other Employment Restrictions:

• H-1B status permits an individual to remain in that visa classification for a maximum of six years.
• The H-1B employee is only eligible to work for the employer which applied for and received approval of the H-1B petition.
• The H-1B employee is only permitted to work for the period of time specified in the H-1B approval notice.
• The H-1B employee is permitted to hold only the specific position outlined in the H-1B petition. If the H-1B employee changes positions, the employer must file a new H-1B petition.

Termination and/or Change of Employer:

• If the H-1B employee chooses to terminate the employment relationship with the sponsoring employer, his/her H-1B status is automatically terminated.
• If the H-1B employee accepts a position with another employer, the new employer must file a new H-1B petition and is not legally able to employ the foreign national until it has received notice of receipt of the application from the immigration service.
• If the immigration service denies the application for new employment, the new employer is legally bound to terminate the H-1B employment upon receipt of the denial.

The Prevailing Wage and the Labor Condition Application

At the heart of the visa H-1B petition is the US Department of Labor with its prevailing wage and the Labor Condition Application. Before it can submit an H-1B petition to the immigration service, the employer is required to attest to a number of conditions. Failure to follow these procedures, or to abide by the regulations of the Labor Condition Application, subjects the employer to serious consequences, which include:

• fines of $1,000 to $5,000 for each offense;
• payment of back wages;
• prohibition from hiring foreign workers for a year or more.

The employer is also required to maintain substantial documentation that it is in compliance with these regulations and to hold that documentation in a Public Access file which may be audited by the Department of Labor at any time.

"To knowingly and willingly furnish any false information in the preparation of a Labor Condition Application, and to aid, abet, or counsel another to do so, is a federal offense punishable by fine or imprisonment of up to five years."

Therefore, as the Office of International Students & Scholars takes responsibility for the preparation, signing, and submission of the LCA, and to ensure that all hiring departments are aware of and prepared to comply with all of the federal regulations which govern the H-1B visa, the Chair of the Department is required to read and sign the LCA Attestation form.

Time Frame for Approval

In most cases, the foreign employee will not be able to begin employment at UNH until the H-1B petition has been approved by immigration service.

In cases where the new employee is already in possession of valid H-1B status, s/he cannot begin employment until UNH has filed the H-1B petition and received a notice from immigration service that it has received our petition.

It is currently taking the immigration service up to three to four months to adjudicate an H-1B petition. OISS preparation time ranges between 30 and 45 days and includes obtaining a prevailing wage, preparing and filing the LCA, and preparation of the H-1B petition. Therefore, when you offer a position to a foreign national, you must allow sufficient time between your offer and the start date of the employment. Although the OISS will do its best to accommodate your needs, it is not within our power to circumvent the system or shortcut federal regulations. Therefore, it is imperative that you plan accordingly and consider this information carefully.

Please submit your completed H1B application packet at least 120 days in advance. Once we have your completed application, barring complications, preparation time for all steps of the H-1B petition is 30 to 45 days. Approval of the petition by the immigration service takes anywhere from four to six months at the present time.

If the foreign employee is outside of the United States, an application for an H-1B visa must be made at the US embassy or Consulate following the immigration service’s approval of the petition. From April to August, this may add a month or two to the process.

Special Considerations

Foreign Nationals in J-1 Exchange Visitor Non-Immigrant Status

Some foreign nationals currently in the US might be in J-1 Exchange Visitor status. Others may have held this type of visa in the past. Many of these individuals may be subject to the Two-Year Home Physical Presence Requirement. The two-year requirement is mandated by the Department of State if the foreign national's exchange program was:

• financed by the US Government and/or the home government;
• if his/her skills are listed as in short supply by their home country; or
• who came to the US for graduate medical education or training.

In these cases, the foreign national is required to return to his/her home country for a period of two years before s/he can hold H-1B status or become a permanent resident of the US. An individual subject to requirement will have to obtain a waiver of that requirement from the US government before s/he is eligible for H-1B status.

Unfortunately, grounds for applying for a waiver are limited and, even when successful, can take six months to a year to obtain. If your prospective foreign worker indicates that s/he is in J-1 status, and/or may be subject to this requirement, contact the International Faculty and Staff Advisor immediately to discuss this problem.

Summary

H-1B status represents the only viable choice for the employment of foreign nationals in tenure-track faculty positions. It is often the best alternative for long-term professional and administrative positions, although the procedures and requirements outlined above may appear complicated and cumbersome. Please be assured, however, that we will assist you throughout the process. Every effort will be made to ensure that the hiring of foreign national for staff and faculty positions is done in the most effective, timely, and professional manner. Our goal is to ease the burden on individual departments while ensuring that UNH is in full compliance with all government regulations and procedures.

In order to avoid delays and complications, it is recommended that you contact the International Faculty and Staff Advisor prior to finalizing the job offer. This will enable us to review the employee's immigration history and make an initial assessment of the complexities of the situation.

Please fill out the data collection form, sign the Labor Condition Attestation form, and return them with all requested information to:

International Faculty and Staff Advisor
Office of International Students and Scholars
Phone: 862-0086
oiss@unh.edu