International Faculty

H-1B – Specialty Occupation Workers Youngstown State University

Sponsorship for Temporary Employment Authorization for Nonimmigrant Faculty

H-1B status is for foreign nationals who come temporarily to the U.S. to work in specialty occupations. Specialty occupations require the theoretical and practical application of highly specialized knowledge as well as attainment of a bachelor’s or higher degree in the specific specialty as a minimum for entry to the position.

Because the H-1B status is employer specific, the H-1B holder may only work for the employer that petitioned USCIS for his or her H-1B status. While occasional speeches or lectures at other institutions or at conferences may occur, compensation for such activities cannot be received.

The H-1B Cap

The federal government places an annual limit on the number of H-1Bs that are granted. As an institution of higher education, YSU is exempt from this general H-1B cap. This means that H-1B petitions for employment at YSU can be filed at any time of the year regardless of the status of the cap.

Duration

In general, H-1B status may be held for a maximum of 6 years. Exceptions to this include the following instances:

  • If you have spent time abroad while in H-1B status, that time is recoverable.
  • If 365 or more days have elapsed since a labor certification or I-140 benefiting you was filed, you may be eligible for a one-year extension of your H-1B status.
  • If you are a citizen of India or China having an approved I-140s but who cannot apply for adjustment of status because your priority date is not current due to the “per country” limits on immigrant visa availability, you may be eligible for a three-year extension of your H-1B status.

Obtaining H-1B Status

H-B status is obtained through the YSU department for whom you will be working. Your hiring department will initiate the request to obtain the H-1B with the Center for International Studies and Programs (CISP). Prior to filing the nonimmigrant petition with USCIS, CISP must obtain a prevailing wage from the Department of Labor (DOL) and file a Labor Condition Application with DOL.

Once filed, USCIS will issue a receipt notice as evidence that the petition has been received and will be processed. Upon request, CISP will forward to YSU employees the receipt number which can be used at www.uscis.gov to check the status of the case.

Documentation Required to Process an H-1B

All documentation should be gathered according to the checklist and then provided to your hiring department who will forward it to CISP.

It is important that you provide up-to-date documents, i.e., valid passports, etc. Be aware that federal regulations regarding passport validity at the time of admission to the U.S. require your passport to be valid for a minimum of six months beyond your authorized period of stay. Your authorized period of stay will be stated on your I-797 Notice of Approval. If you are outside the U.S. and your passport is not valid for this amount of time beyond your authorized stay, the admission officer will only give you lawful presence in the U.S. on your I-94 to match your passport validity period.

Please provide the following information either in either paper or electronic

  1. Complete name it appears in your passport (provide a copy of the passport identification page and current U.S. visa, if applicable);
  2. Previous names used, if any;
  3. Gender;
  4. Current physical residence address (not an employer’s address or post office box);
  5. Date of Birth;
  6. State (or Province) of Birth;
  7. Country of Birth
  8. Country of Permanent Residence;
  9. Country of Citizenship;
  10. U.S. Social Security # (SSN) if any;
    NOTE: Please do NOT send your SSN by email.
  11. USCIS A#, if any; if you have ever been issued an Employment Authorization Document (e.g., for Optional Practical Training) this can be found on the employment authorization card;
  12. A list all academic degrees, including name and address of each institution, major field of study for each degree, and dates each degree was awarded;
  13. Current occupation;
  14. Current nonimmigrant status (if you are currently inside the United States) OR location of the United States Consulate to which visa application will be made AND U.S. city you intend to use to enter the U.S;
  15. A statement declaring whether anyone has ever petitioned for you to gain permanent residence in the U.S. (including self-petitioning);
  16. All dates during which you have been in the U.S., indicating the visa status held during each period;
  17. Complete name, relationship to you, date of birth, and place of birth for each dependent, if any;
  18. Copies of the following:
    1. All U.S. immigration documents, including passport identification page(s) U.S. visa pages from your passport, Forms I-20 (for F-1 student status) and/or Forms DS-2019 (for J-1 status); ALL Forms I-797 (Notice of Action) and employment authorization documents;
    2. Proof of your highest degree, AND;
    3. Current CV

The H-1B Approval Notice

Upon approval of the H-1B petition, USCIS issues Form I-797 Notice of Action. This is sent to the employer who will maintain it until you need it for travel.

  • If you are present in the U.S., the I-797 will contain an I-94 card showing your new status and its expiration date. The card should be stapled to your existing I-94 card.
  • If you are located outside the U.S., the notice will be mailed to you so that you can use it in applying for a visa at a U.S. consulate. You are responsible for scheduling your visa interview and verifying with the consulate what documentation you must provide. You may enter the U.S. up to 10 days before your appointment begins.

J-1 Subject to the Two Year Home Residence Requirement Changing to H-1B Status

If you have ever held J-1 status and been subject to the two-year home residence requirement, you must present evidence of either satisfying the requirement or having the requirement waived. Evidence of having the requirement waived is a Department of State waiver recommendation or a USCIS waiver approval (Form I-612). Those applicants who present a Department of State recommendation must be prepared to show the actual I-612 waiver approval notice when applying for a visa at a U.S. consulate.

Important Note about Processing Times

An often-asked question is how long it takes to get an H-1B approval. This is a difficult, if not impossible, question to answer since the petitioning process involves federal agencies (DOL and USCIS) with their own fluctuating workloads. Additional time may be needed in order to obtain all the necessary documentation or to resolve prevailing wage issues. Also, in the event that USCIS questions the H-1B petition by issuing a Request for Evidence, extra time will be needed to prepare a response.

Portability

Individuals who hold valid H-1B status with another employer may begin employment at YSU as soon as the YSU petition is filed with USCIS. In this situation you do not have to wait for the new petition to be approved before employment commences. However, if the petition is denied, work authorization is immediately terminated.

Dependents

H-1B dependents are classified as H-4s and are not eligible for employment. If dependents are located in the U.S. a change of status to H-4 category is completed on Form I-539 which may be filed together with your H-1B petition. NOTE: CISP cannot advise or provide assistance to you with the completion of an I-539. CISP will include the I-539 provided by you with the I-129 petition. You are responsible for the filing fee associated with the I-539.

If located outside the United States, H-4 category is granted at the United States Consulate. Information on the application process can be obtained from the U.S. consulate.

H-1B Extensions

Your H-1B status is extended by the employer when filing with USCIS a petition requesting an extension. The petition must be filed before your current H-1B status expires.

Required documentation is listed on the H-1B Checklist* and must be submitted to CISP. Upon receipt, CISP will proceed with requesting the prevailing wage and filing the Labor Condition Application. The petition for extension should be file as soon as possible but not more than 6 months before your current expiration.

Extensions can be requested for any period of time up to a maximum of 3 years as long as this does not put you over the 6 years you are allowed to be in H-1B status.

Exceptions to the 6 year maximum include the following instances:

  • If you have spent time abroad while in H-1B status, that time is recoverable.
  • If 365 or more days have elapsed since a labor certification or I-140 benefiting you was filed, you may be eligible for a one-year extension of your H-1B status.
  • If you are a citizen of India or China having an approved I-140 but who cannot apply for adjustment of status because your priority date is not current due to the "per country" limits on immigrant visa availability, you may be eligible for a three-year extension of your H-1B status.

Employment While Extension is Pending

Depending upon the remaining time left on your H-1B maximum 6 year stay, federal regulations allow you to work for up to 240 days after your current H-1B expires while your petition for extension is pending with USCIS.

In order to take advantage of this rule:

  1. The petition for extension must be received by USCIS before your current H-1B expires; and
  2. You must continue to work for the employer that filed the extension petition.

H-1B Extension and International Travel

You must be physically present in the U.S. when your H-1B extension is filed with USCIS. If you travel after the extension is filed you must be sure that you have, or can obtain, a valid H-1B visa for your return to the U.S. If your travel plans include returning after your current H-1B expires, you will have to wait outside the U.S. until your extension is approved and you can use it to obtain a new visa.

H-1B Amendments

Federal regulations require the filing of a new petition with USCIS to report material changes to an H-1B holder's employment prior to the actual planned change.

Material changes that must be reported may include, but are not limited to, the following:

  • Change in title
  • Change in percent effort
  • Change in job duties
  • Change in work location
  • Change in supervisory responsibilities
  • Change in salary

In order to determine whether or not an amendment is required, the employer must provide CISP with information regarding any proposed change. This will help CISP in determining the appropriate course of action. If the proposed changes constitute material changes to the employment, an amended H-1B petition must be filed with USCIS. To file an amendment, CISP requires additional documentation. The amendment petition should be filed with USCIS before you assume the new title, salary, work location, etc.

Travel Information

Traveling after your initial entry to the U.S. requires you to be aware of the requirements for visa issuance as well as admission and inspection policies when arriving to the U.S. or traveling within the U.S. While the U.S. Departments of State and Homeland Security are trying their best to minimize potential delays, it is important to remember that security measures have become stricter and tracking programs and electronic systems have been implemented.

INTERNATIONAL TRAVEL

Note that you should not travel overseas when a petition for change of status has been filed and is pending adjudication with USCIS. By traveling overseas, the change of status will be deemed abandoned.

Additionally, nonimmigrants in H-1B, O-1, E-3, or TN status who are applying for an extension of status within the U.S. must be physically present in the U.S. on the date the petition for extension is filed with USCIS. Notify CISP of your travel itinerary if you have plans to travel around the time an extension petition is being prepared.

Before You Leave the U.S.

  • If you are a J-1 Exchange Visitor , you must visit our office with your DS-2019 and the DS-2019s of any dependents traveling with you so that we may endorse the travel validation section of the form(s). You should also carry a current letter from your host confirming your continuing visit.
  • If you are an employee in H-1B, O-1, E-3, or TN status , you should make arrangements to pick up your I-797 approval notice. If you have to apply for a visa you must pick up a copy of your petition. You should also carry a current letter from your employer confirming your continued employment.

WARNING: Your H-1B will be terminated if you have applied for Permanent Residence and you intend to travel overseas and return using your Advance Parole document. Please contact us prior to traveling.

Renewing Your Visa Stamp at U.S. Consulates

If you require a visa in your passport in order to return to the U.S. you will need to obtain the visa stamp from a U.S. consulate abroad. We recommend that before traveling you visit the consulate or embassy website for information on application procedures and required documentation and processing times.

Delays may occur at US consulates. For this reason, we encourage you to make your visa appointment as soon as your itinerary is set. Also, consider scheduling your visa appointment near the date of your arrival. In the event of an administrative review, this may help minimize a possible delay in your return to the U.S.

If your work is in the field of technology, engineering, or the sciences, you may be questioned closely by consular officers about the details of your job. As a result, there may be additional visa delays as consular officers seek security advisory opinions from other federal agencies.

Arriving in the United States

Upon arrival to the U.S. and completion of the inspection process, a Customs and Border Protection (CBP) officer will stamp your I-94 card with the date of admission and hand-write your visa classification and period of admission. The notations on this card are very important, as they are evidence of your admission to the U.S. and the date through which you are authorized to stay.

Before you leave the inspection area, examine your I-94 to be sure that the CBP officer wrote on the I-94 your correct visa classification (J-1, H-1B, TN, O-1, E-3) and period of admission. If you enter the U.S. as a J-1, the period of admission should appear as “D/S” for “duration of status”. If you arrive as an H-1B or O-1, the date should coincide with the expiration date on your I-797A Approval Notice. If you feel there has been an error on your I-94, ask the officer to correct the document before leaving the inspection area.

Be aware that federal regulations regarding passport validity at the time of admission to the U.S. require your passport to be valid for a minimum of six months beyond your authorized period of stay. If you are an H-1, E-3, TN, or O-1, your authorized period of stay will be stated on your I-797 Notice of Approval. If you are a J-1, your authorized period of stay is your program end date stated on your DS-2019. If your passport is not valid for this amount of time beyond your authorized stay, the admission officer will only give you lawful presence in the U.S. on your I-94 to match your passport validity period.

Upon your return, provide CISP with a copy of your new I-94. If you are in H-1B, E-3, TN or O-1 status, you must return the original I-797 Approval Notice to CISP (YSU employees) or to your department.

TRAVELING WITHIN THE UNITED STATES

Traveling within the U.S. also requires that you carry evidence of your legal status. Besides a valid passport, you must carry a valid I-94 which establishes your authorized period of stay in the U.S. J-1 scholars must also carry their DS-2019s. In some instances you may find yourself in a situation whereby your previous status has expired but a timely extension or change of status has been filed with USCIS. In these instances, it is advisable to carry a copy of the Notice of Action (Form I-797C) evidencing such filed extension or change of status. Please contact our office to obtain a copy of the notice. In addition, the employing department, as in the case of overseas travel, may want to provide a letter attesting to your current employment. Failure to carry these documents while traveling in the U.S. could result in serious consequences if you are asked by immigration enforcement officers (at, but not limited to, Border Patrol checkpoints) to produce evidence of your immigration status.

* Foreign faculty members currently in J-1 Exchange Visitor status (no matter whether s/he is designated as J-1 student, professor, or researcher) are prohibited by federal regulations from holding tenure-track positions. If the foreign faculty member has previously held J-1 status, USCIS will need either (1) proof that s/he was NOT subject to 212(e) (also known as the 2 year home residency requirement) OR proof that 212(e) has been waived.