Hiring H-1B Specialty Occupation Workers


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.
 
 
The H-1B Cap

The federal government places an annual limit on the number of H-1Bs that are granted. As institutions of higher education and nonprofit entities related to such institutions, Texas A&M University System members are exempt from this general H-1B cap. This means that H-1B petitions 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 the foreign national has 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 the H-1B holder was filed, he or she may be eligible for a one-year extension of his or her H-1B status.
  • If the foreign national is a citizen of India or China having an approved I-140 but who cannot apply for adjustment of status because his/her priority date is not current due to the "per country" limits on immigrant visa availability, the foreign national may be eligible for a three-year extension of his or her H-1B status.

 
Obtaining H-1B Status

H-1B status is obtained through the Texas A&M University System member for whom the employee will be working. The hiring department will initiate the request to obtain the H-1B with the Immigration Services for Faculty & Scholars (ISFS) through the Tracker System. If you need access to Tracker, please contact our office at 979-862-1719.
 
 
Documentation Required to Process an H-1B
Through Tracker, ISFS will send you the employer's documents needed in order to prepare an H-1B petition. You will need to complete the forms, have them signed, and then upload them to the employee's Tracker record.
 
Steps in Obtaining H-1B Classification
1. Prevailing Wage Determination:
A completed Department Request for a Prevailing Wage Determination form, along with the position description, will allow ISFS to obtain the most appropriate prevailing wage from the Department of Labor (DOL). Employers must pay the salary offered to the employee or the prevailing wage dictated by DOL, whichever is greater.
 
2. Labor Condition Application:
After obtaining a prevailing wage determination from DOL, ISFS will prepare Form ETA 9035, Labor Condition Application (LCA) and send a Notice of Filing a Labor Condition Application to your department for posting in 2 conspicuous places for a period of 10 business days. After the notice is posted, ISFS will submit the LCA to DOL for certification.
 
Information needed to complete the LCA includes:
  • job title,
  • proposed rate of pay,
  • proposed dates of employment (maximum time per H-1B application is 3 years), and
  • physical location of employment.

This information will be used to file the LCA and it must be included in the job offer letter.
 
3. Nonimmigrant Petition:
When the LCA posting period is over and we've received a certified LCA from the DOL, the H-1B petition with the employee's supporting documentation will be submitted to USCIS for adjudication. Once filed, USCIS will issue a receipt notice as evidence that the petition has been received and will be processed. ISFS will forward to TAMU employees the receipt number which can be used to
check the status of the case online.
 
4. The H-1B Approval Notice:
Upon approval of the H-1B petition, USCIS issues Form I-797 Notice of Action. Those employees that are not yet in the U.S. will use the I-797 when applying for a visa at a U.S. consulate.
 
 
Filing Fees
New H-1B petitions must be accompanied by standard and fraud prevention and detection filing fees. The most current fees will be found on the USCIS Fee Schedule. The employer must pay each of these fees in the form of checks made payable to "Department of Homeland Security". The H-1B applicant must not pay either of these filing fees.
 
 
J-1 Subject to the Two Year Home Residence Requirement Changing to H-1B Status
H-1B applicants who have ever held J-1 status and been subject to the two year home residence requirement 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 TAMU (or TAMUS member) as soon as the TAMU (or TAMUS member) 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, the employee's 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 the principal's H-1B petition. Note that ISFS cannot advise or provide assistance on the completion of an I-539. ISFS will include the I-539 provided by the H-1B with the I-129 petition.
 
If located outside the U.S., H-4 category is granted at the U.S. consulate. Information on the application process can be obtained from the 
U.S. consulate.