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Hiring H-1B Employees

H-1B is a non-immigrant visa that is designated for individuals coming temporarily to the U.S. to perform services in a specialty occupation. 


H-1B status is reserved for those "who possess high education, technical training, specialized experience or exceptional ability." The university may have a "dual intent" in hiring an individual, first temporarily and later permanently if approved for an immigrant visa. And, H-1B petitions can be submitted to USCIS for either full-time or part-time employment.

There is a limit, called the H-1B Cap, on the number of petitions that USCIS will approve each year. However, universities are exempt from the H-1B Cap. MSU can petition for H-1B employees throughout the year and for any employment start date.

Eligibility for H-1B Status

The status is reserved for those "who possess high education, technical training, specialized experience or exceptional ability".

The position must be a specialty occupation as defined as "an occupation that requires (A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor's or higher degree in the specific specialty as a minimum for entry into the occupation in the United States." INA214(i); 8USC 1184(i).

The H-1B candidate must demonstrate that he/she is qualified for the position and must possess the knowledge and skills needed for the position. The required degree must be in a specialty field.

The hiring department must provide documentation to prove that the position is a specialty occupation (requiring a Bachelor's degree or higher in a specialty field) and that the person has those qualifications. The United States Citizenship and Immigration Service (USCIS) will make the final decision on whether or not the individual qualifies for the H-1B classification.

If the person is currently in the U.S. in H-1B status and is working for another employer, MSU must file a new H-1B petition with USCIS. 

If your candidate is, or has been, in J-1 status there is a possibility that the candidate may not be able to obtain an H-1B visa or change status to H-1B within the U.S. without first obtaining a waiver of the 2-year home residency requirement.

If you are not sure if applicant is subject, contact OISS.

H-1B is Employer and Position Specific

The H-1B visa is "employer specific and position specific." Therefore, the hiring department will have to file an H-1B petition for the candidate even though they may already have H-1B status with another U.S. employer or with another department at MSU. These cases will be considered "new" employment and will require all filing fees to be paid by the hiring department. 

Time Limits

6-Year Maximum

An employer may request employment for an individual for up to 3 years. The H-1B can be extended if the individual is eligible. The maximum amount of time that an individual can hold H-1B status is 6 years.

Entry to the U.S. for New H-1B Employees

Individuals who are outside of the U.S. may enter the U.S. no more than 10 days prior to start date on the H-1B approval notice.

Exception to the 6-Year Maximum

If an individual is at a certain stage in the permanent residency process they may be eligible for an H-1B extension beyond the 6-year maximum. The department can contact OISS to determine if the H-1B applicant is eligible for an extension beyond 6 years.

Filing Fees

Standard Filing Fees for All Petitions

The department is responsible for paying all H1-B filing fees. Filing fees for university filed H-1B petitions include:

  • I-129 filing fee: $460.00
  • Anti-fraud fee: $500.00 for all initial H-1B cases
  • H-1B extensions: $460.00 filing fee for form I-129

Optional Premium Processing Fee

USCIS has an expedited process available for H-1B petitions called Premium Processing. Premium Process is optional and can be paid for by the hiring department or by the employee. If interested in using Premium Processing for the H-1B petition, please note this on the checklist. OISS will have to prepare an additional USCIS form for Premium Processing. 

Cost: $1,410.00 plus standard filing fees

Time: If filed with premium processing, USCIS guarantees that they will do 1 of 3 things within 15 business days of the receipt of the H-1B petition.

  1. Approve the petition.
  2. Request more evidence. If USCIS requests more evidence, then they are no longer required to process the petition within 15 days after they receive the evidence.
  3. Deny the petition.

Dependent Filing Fees

The filing fee for change or extension of status for dependents is $370.00 regardless of the number of dependents. The department is not required to pay the dependent fee. 

Wage Requirements

MSU departments must agree to pay H-1B employees the actual wage or prevailing wage, whichever is higher.

  • The actual wage means the wage being paid to all other individuals with similar experience or qualifications for the specific employment in question.
  • The prevailing wage is the wage level determined by the DOL for the occupation for the specific location of employment.

H-1B regulations include a "no benching" rule. This rule requires the employer to continue to pay the wage rate to an employee in non-productive status unless the non-productive status is a common benefit such as maternity leave, illness, etc.

Part-time H-1B Requirements

Part-time H-1B employment requires employees to work a specific minimum amount of hours per week, as indicated in the petition to USCIS. Before approving the petition, USCIS may request additional information about how the H-1B employee will support themselves. 

The department must pay the minimum amount of hours worked each week as listed on the petition. It is the department's responsibility to document the hours worked each week. This documentation must be retained by the department and be immediately available if requested by the Department of Homeland Security (DHS) or the Department of Labor (DOL).

The department must complete the part-time certification form if petitioning for a part-time position.

Return Transportation Costs

If your department dismisses the employee before the end of the authorized period of H-1B employment, your department will be responsible for paying the reasonable transportation costs for the employees to go back to their last place of foreign residence. If the employee voluntarily terminates employment, the department is not responsible for return transportation costs.

No penalty is specified, but when the employer fails to pay the required trip expenses, a complaint from the beneficiary asserting noncompliance may be considered by the USCIS in its adjudication of future petitions by the employer. The USCIS expects the employer to meet this obligation, although it does not directly verify compliance.

At MSU, return transportation costs will be the responsibility of the hiring department.

H-1B Request Process

This process applies to both initial and extension H-1B applications.

Timeline

Begin the H-1B request process at least 6-7 months before the employee's anticipated start date.

General Process

The H-1B non-immigrant application is a three-step process involving both the Department of Labor (DOL) and the USCIS. This process is a 3-way partnership between OISS, the hiring department and the applicant/employee.

The hiring department is encouraged to contact OISS with any questions about the H-1B process and to discuss procedures. If the department is familiar with the H-1B hiring process, they should start with Step One (below) and send the H-1B Prevailing Wage Request Form to OISS to the attention of Chris Bargerstock or Neringa Tuyilingire.

Step One: Prevailing Wage (PW) Determination

The PW determination requires employers to ensure that the wage offered does not discriminate against U.S. workers by offering wages that are significantly lower than the actual wage. H-1B regulations requires that the employer pay the actual wage or the PW, whichever is higher. PW determinations are made as follows:

  1. Department completes and emails the H-1B Prevailing Wage Request Form to OISS.
  2. OISS submits the PW request form to the Department of Labor (DOL). Or, if the position is a Union position, then OISS will determine the PW based on the union contract.
  3. OISS emails the department the PW submission date. It may take up to 90 days to get the PW determination request result.
  4. While PW request is pending with the DOL, the Department completes the Export Control Worksheet (ECW). Any questions regarding ECW may be directed to Trade and Sanctions Unit.
  5. OISS asks the international employee to complete questionnaires and submit copies of documents through the INSZoom system.
  6. OISS emails the department the DOL PW determination result.

Step Two: Labor Condition Application (LCA) Certification

 The purpose of the Labor Condition Application is to attest that:

  • the higher of the two wages will be paid to the employee
  • the employee is eligible for the same benefits as other similarly employed US workers
  • the employee is not being employed because US workers are out on strike or lockout
  • the employment of the international will not adversely affect the working conditions of other workers
  • proper notification was given of the university's intent to hire an H-1B non-immigrant

These attestations require documentation that must be made available for DOL and public inspection. The LCA is part of the documentation.

1. The Department Completes Actual Wage Statement Form and Sends it to OISS

    • MSU must determine the actual wage rate for the position. The actual wage for the position is the wage or wage range offered by the employer for that job. The actual wage keeps employers from paying the H-1B less than it pays other workers.

2. The Department Prepares Internal Notice and Returns to it OISS After the Posting Period

    • Two copies of the Internal Notice should be signed by the department chair and posted in two places within the hiring department and should remain posted for 10 business days.
    • The notices must be of sufficient size and visibility and shall be posted in 2 or more conspicuous places, which would include, but not limited to, locations in the immediate proximity of wage and hour notices or occupational safety and health notices.
    • The notices must be posted on, or within 30 days before the date the LCA is filed with the DOL and remain posted for the 10-day period.
    • You must send a copy of the posted Internal Notice to OISS immediately after it is posted.
    • Once the 10 business days are reached, the two posted original Internal Notices must be dated, signed and sent to OISS.

3. OISS Files the LCA with DOL

    • Once OISS has the copies of posted Internal Notice and Actual Wage Statement Form, OISS files the LCA with the DOL. The DOL will take 7-10 business days to certify the LCA.
    • The certified LCA will be included in the H-1B petition submitted to USCIS.

Step Three: Preparation of H1-B Petition

  1. OISS notifies the department the LCA approval.
  2. Department must obtain and complete items from the checklist and submit to OISS.
  3. OISS reviews submitted documents, completes necessary forms and prepares the H-1B petition to be sent to USCIS.
  4. OISS will notify the department contact person by e-mail when the H-1B petition is ready to be mailed to USCIS.
  5. Department administrator will pick up the H-1B Petition from OISS and will mail it to USCIS. The department will be responsible for express mailing the petition to the USCIS Service Center using a mail service that tracks the package (Federal Express, UPS, or DHL).
  6. Department returns the 2 original Internal Notices of filing of the LCA after they have been posted for 10 business days.
  7. Department will have employee sign and return the Acknowledgment of Certified LCA form to OISS, which you can find in the envelope you picked up from OISS.

H-1B Extensions

An H-1B extension, in most cases, is similar in paperwork requirements as an initial H-1B. An H-1B extension petition will require a new prevailing wage and new labor condition application and new supporting documents. If the initial length of the H-1B was for less than 3 years, there are some exceptions where a new prevailing wage is not required.

If you are in doubt, please contact OISS for more information concerning H-1B extensions.

Current H-1Bs may remain in the US and employed for 240 days, while waiting for a timely filed H-1B extension approval from USCIS. If traveling during this time, contact OISS.

H-1B Amendments

Please consult with OISS before making any changes in H-1B employment such as job title, duties, salary, full or part time, or location/department.

An amended H-1B may be required under certain circumstances when a material change takes place.

H-1B Employer Inspections

The United States Citizen and Immigration Services (USCIS) may conduct periodic inspections of the H-1B. The purpose of the inspection is to verify the facts relating to the H-1B petition (who is the employer, where does the work take place, who is the employee, etc.).

These inspections are to confirm that there is nothing fraudulent (untrue) about the H-1B application.

These USCIS Fraud Detection and National Security (FDNS) inspectors will either make an appointment to meet the employee and see the work site or conduct an unannounced on-site inspection.

The visits are usually brief and under one hour. They may want to see each of the work site locations, administrative offices and visit the OISS.

USCIS officers have the right to ask any questions related to the facts of the H-1B application. In most cases, they will want to talk to the H-1B employee, the hiring department administrator or business manager and OISS. They will probably want to see payroll records and perhaps other evidence related to the basic facts of the employment: job title, salary, start date, duties, work location, supervisor, etc.

Employee Termination and Resignation

Notify OISS

If an H-1B employee from your department resigns or is terminated, you must inform OISS. OISS may need to withdraw the underlying Labor Condition Application and H-1B petition.

The employee must submit the H-1B Departure Notice (PDF) to OISS.

No Grace Period

There is no grace period for terminated H-1B employees, although USCIS has generally allowed up to 10 days to change their status to another visa category or have another H-1B application filed. This is at the discretion of the adjudicating officer.

The H-1B employee must be in valid immigration status to be eligible for any immigration benefit.

Return Transportation Costs

If your department dismisses the employee before the end of the authorized period of H-1B employment, your department will be responsible for paying the reasonable transportation costs for the employees to go back to their last place of foreign residence. If the employee voluntarily terminates employment, the department is not responsible for return transportation costs.

No penalty is specified, but when the employer fails to pay the required trip expenses, a complaint from the beneficiary asserting noncompliance may be considered by the USCIS in its adjudication of future petitions by the employer. The USCIS expects the employer to meet this obligation, although it does not directly verify compliance.

At MSU, return transportation costs will be the responsibility of the hiring department.

Reimbursements for Lecture and Research Invitations

H-1Bs invited to lecture, collaborate, conduct research or present at other institutions can receive reimbursement and allowances for reasonable living and transportation costs only.

Immigration regulations prohibit H-1B employees from receiving honorarium payments.

Candidate is Currently in H-1B Status with Another Employer

The H-1B visa is "employer specific and position specific." Therefore, the hiring department will have to file an H-1B petition for the candidate even though they may already have H-1B status with another U.S. employer or with another department at MSU. These cases will be considered "new" employment and will require all filing fees to be paid by the hiring department. 

Portability of H-1B

If a person already has an H-1B with another employer and wants to begin working at MSU, MSU can file the H-1B petition with USCIS, and the employee can start working once OISS receives the USCIS receipt notice for the petition. 

With the USCIS receipt notice, the I-9 form can be completed and the employee can begin working on the date listed on the H-1B petition.

H-1B employee must maintain employment with the previous employer until the MSU petition is submitted to USCIS.

Portability may not be recommended in all cases. 

Portability

If a person already has an H-1B with another employer or department at MSU, the hiring department can file an H-1B petition with USCIS, and the employee can start working once OISS receives the USCIS receipt notice for the petition. 

With the USCIS receipt notice, the I-9 form can be completed and the employee can begin working on the date listed on the H-1B petition.

H-1B employee must maintain employment with the previous employer or MSU department until the H-1B petition is submitted to USCIS.

Portability may not be recommended in all cases. 

Dual Intent

H-1B allows the MSU hiring department and the applicant to have dual intent.

Dual intent, allows an H-1B employee to have the intention of applying for permanent residency or U.S. citizenship in the future. Dual intent also allows the H-1B employee to begin the permanent residency process while continuing to work and re-enter the U.S. in H-1B status.

Individuals in the permanent residency process should consult with their attorney or OISS before traveling outside the U.S. to determine if all documents are in order.

H-1B Petition Approval and H-1B Visa Stamp

If the H-1B applicant is outside of the US they will need time to apply for an H-1B visa stamp at a U.S. Consulate in order to enter the U.S. in H-1B status. 

The H-1B petition, the H-1B visa stamp, and H-1B status are three separate items. The employer obtains permission to hire an H-1B employee by filing the H-1B petition. The employee is the only one who can obtain an H-1B visa stamp at a U.S. Consulate outside of the U.S. When they enter the U.S. using their H-1B visa and approved petition, they are granted H-1B status by U.S. Customs and Border Protection.

Traveling While Change of Status to H-1B is Pending

Employees who are in the U.S. and are changing their status to H-1B cannot travel outside of the U.S. while the H-1B petition is pending with USCIS. If they leave the country while it is pending, USCIS will consider the change of status application to be abandoned. USCIS will still process the H-1B petition, but the employee will have to remain outside of the U.S. until the petition is approved and they obtain an H-1B visa at a U.S. Consulate. 

Traveling Internationally while in H-1B Status

To learn more about traveling while in H-1B status, go to our Travel and Visas webpage and click on H-1B Employees tab. 

H-4 Dependents

Spouses and children of foreign nationals, who hold H-1B visas, are eligible for H-4 visas. H-4, dependents include spouse and unmarried children under age 21. Family members with H-4 visas are not eligible to work in the US. H-4's are eligible to attend school, part-time or full-time.

Dependent NOT in the U.S.

No paperwork is required on behalf of the dependents.

Dependent wishes to enter the U.S.

He/she will have to go to a US consulate with the following items to obtain the H-4 visa stamp:

  • I-797 H-1B approval notice
  • proof of marriage and/or birth
  • all required forms, fees, and pictures for the visa issuance (check with the consulate you will be visiting for specific requirements and to schedule an appointment in advance if available).

Dependent in the U.S. that need H-4 visa status

Complete Form I-539 and submit certain documents. See checklist. Form I-539 can only be submitted for dependents if they are currently in the United States.

NOTE: H-1B employee should never sign the Form I-539. Only one dependent should sign Form I-539 and any additional dependents should be added to Form I-539 supplement.