Important Note to Departmental Representative and/or Supervisor of Foreign National: If you have never handled H-1B immigration matters on behalf of your department, please contact Peter Li, Immigration and Policy Research Officer in International Services and Student Affairs (ISSA) at (269) 387-5873 or via e-mail at peter.li@wmich.edu for a review of U.S. Citizenship and Immigration Services (USCIS) and Department of Labor (DOL) regulations and processing procedures regarding this immigration status.

BASIC REQUIREMENTS & GENERAL INFORMATION

The H-1B Temporary Worker non-immigrant classification may be granted to a foreign national who will perform services/work on a temporary basis in specialty occupations, defined as those positions requiring:

1. theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation in such fields of human endeavor as architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts
2. a bachelor's or a higher degree in the specific specialty as a minimum for entry into the occupation in the United States

H-1B status may be granted by USCIS in increments of three years or less, depending on the length of employment authorization requested by the department.  H-1B applications should not be requested for a period longer than can be guaranteed by funding availability. 

The maximum time permitted in H-1B status is six years, which is reduced by any prior periods of stay in any H or L classification (no longer including H-4 dependent status).  Previous periods in H or L status are not counted toward the six-year maximum if the individual was outside of the U.S. for at least twelve (12) months following the time spent in H or L status. 

An appropriate entry visa is needed when a foreign national, except Canadian citizens, enters or reenters the U.S. (few exceptions – please contact ISSA for details).  If an H-1B applicant is outside the U.S., he/she will need time to apply for an H-1B visa at a U.S. consulate to enter the U.S. Having approval of H-1B status from USCIS does not guarantee issuance of an H-1B visa (travel document) by a U.S. consulate.  The H-1B approval notice (I-797) is not a visa, nor may it be used in place of an H-1B visa to enter/reenter the U.S.  H-1B employees are eligible to enter the U.S. 10 days prior to the employment start date.

In the case of H-1B extensions of the same position, the individual may continue his/her employment up to 240 days if an extension request was submitted to USCIS prior to the end of the previous H-1B period.   This 240-day rule only applies to the scholar residing in the U.S.  During this time, the scholar should not leave the U.S.

H-1Bs are approved for a specific job at a specific employer at a specific location.  Any changes require prior consultation with ISSA and possibly a prior approval by USCIS.  H-1B employees are not allowed to receive honorarium.  

Positions used in the H-1B process must be paid or salaried, and must meet WMU “actual” wage and DOL “prevailing” wage regulations as guaranteed by a certified Labor Condition Application (LCA). 

PREMIUM PROCESSING: Effective July 31, 2001, INS/USCIS implemented a Premium Processing Service to allow businesses and organizations the opportunity to obtain faster processing of an H-1B petition to meet their needs for a foreign worker.  Specifically, USCIS will provide a 15-calendar day processing time to those who choose to use this service, or USCIS will refund the $1,000 fee.  Please note the 15-calendar day response time does not guarantee approval, and you may be asked to submit additional information.  Also, the $1,000 fee only expedites the final step of the H-1B processing at USCIS, not the steps with DOL.  This expedited processing fee is in addition to the filing fees.  Please contact the Immigration and Policy Research Officer in ISSA for further details.

PORTABILITY RULE:  On October 18, 2000, a new H-1B bill was signed into law, which allows current H-1B status holders to begin new employment upon filing of a new petition at a new place of employment (= WMU).  With an official receipt notice (rather than an approval notice) from USCIS, ISSA can allow the person to begin working at WMU.  Of course, if WMU’s H-1B petition is later denied, he/she should stop working immediately.

RETURN TRANSPORTATION: Please note that departments are responsible for the reasonable costs of return transportation of the foreign national abroad (last place of foreign residence) if he/she is dismissed from employment before the end of the authorized H-1B period for any reason.

Please advise the H-1B employee and his/her family members to consult with the Immigration and Policy Research Officer in ISSA prior to traveling outside the U.S. as immigration regulations change constantly.  

Only spouses and children under 21 may accompany the foreign national in the dependent H-4 status.  H-4 dependents may not work under any circumstances. 

Persons who are or have been in J-1 or J-2 status and are subject to the “Two Year Home Country Physical Presence Requirement” are not eligible for H-1B until the requirement is fulfilled or a waiver is obtained.

THE H-1B APPLICATION PROCESS

All H-1B applications, including amendments, extensions, concurrent employments, etc., require three steps (in the case of positions represented, Step 1 can be substituted by collective bargaining agreements). 

Total processing time for an H-1B petition currently averages between 3 ½ to 4 months {2-7 days to obtain a prevailing wage determination from the Michigan Department of Labor & Economic Growth (DLEG) - if required; 1-2 days (could vary if additional information is required) to obtain a certified Labor Condition Application from DOL; and 60-120 days to obtain an approval notice from USCIS}.

STEP 1:  DLEG must certify the “prevailing wage” in the field for the type of position unless the position is represented by union.  The H-1B employees must be paid at or above the DLEG prevailing wage determination or the actual wage within the department/college, whichever is higher. 

STEP 2:  DOL must certify an LCA submitted by ISSA.  On the LCA, WMU attests to the terms and conditions of employment and agrees to abide by the labor conditions listed on the LCA.

STEP 3:  USCIS Regional Service Center in Vermont or California must approve the H-1B petition (I-129).  Because WMU as employer is the petitioner, ISSA signs the legal forms for DOL and USCIS.  The individual seeking H-1B status does not sign any forms for the H-1B process, nor may an outside attorney prepare them. 

THE ROLE OF ISSA

• Upon receiving an H-1B request, ISSA will send confirmation of receipt of the H-1B request to the hiring department via e-mail. 
• ISSA will determine that actual wage requirements are being met based on information provided on the “Actual Wage Worksheet” completed by the hiring department.   
• If necessary (when position is not covered by union contract), ISSA will submit a prevailing wage determination to DLEG.  It will take approximately 2-7 business days for DLEG to provide a prevailing wage determination. 
• Once the prevailing wage determination is returned, ISSA will ensure that DOL prevailing wage regulations are being met.  If the department is offering a salary lower than the prevailing wage, ISSA will contact the department’s administrative contact person to discuss options.  Please note that prevailing wages by DLEG is valid for 90 days only, thus it may be necessary to increase the H-1B worker’s wage at the time of an extension.   
  
• Once the LCA is certified, ISSA will prepare an I-129 petition and supporting documents for the H-1B petition and will send the entire petition to USCIS by an express service.
• ISSA will receive the original H-1B approval notice (I-797) from USCIS, at which time the department will immediately be notified of any action needed.  H-4 approval notices for dependents will be sent directly to the addressed listed on Form I-539 (completed by dependents).  

NOTE: If you are requesting an H-1B application for a prospective teaching faculty, please contact the Immigration and Policy Research Officer immediately to discuss a possible permanent residency application.