We have highlighted frequently asked questions related to H-1B processing; please reach out to Employment Immigration Manager, Erin Clark (eclark32@nd.edu), with any additional questions.
What type of position qualifies for H-1B status?
“Specialty Occupations” qualify for H-1B status. Generally, this means that a position must require a bachelor’s degree or higher in a specific field.
What type of employee is eligible to apply for H-1B status?
Only employees holding at the required degree in the required field are eligible for H-1B status. Generally faculty positions meet this criterion, as do most professional positions.
Who applies for H-1B approval: the employee or the department?
Once a candidate has been selected for employment and that person indicates the need for H-1B sponsorship, the department submits ISSA’s Immigration Request Form (IRF). ISSA then provides a visa recommendation and information about starting the H-1B process. For the purposes of the H-1B petition, the university is the petitioner and the employee is the beneficiary.
What is the cost of the petition and who pays it?
The petition fee is $460. An additional one-time anti-fraud fee of $500 is required for each new H-1B beneficiary (such fee does not have to be paid when applying for an extension of H-1B status). As mandated by federal law, the employer must pay these fees. Academic units will be asked to provide checks through the Financial Tool Kit when processing begins.
How long does the petition process take?
Internal stages take approximately six weeks, which includes the Immigration Request Form and compiling petition documents. Once compiled, external counsel's review may take up to three weeks. Other timeline delays including waiting on the future employee's institution to issue the diploma (confirmation letters are not sufficient), managing education evaluation issues, or confirming position requirements have been met. These unexpected process delays are why our team recommends that departments initiate the process three months in advance of the position start date.
Once the completed petition is submitted to USCIS, it currently is taking USCIS more than seven months to process an H-1B petition. An expedited processing option called premium processing is available for an additional $2,500. Premium processing guarantees that USCIS will process the case in 15 calendar days, but it does not guarantee approval.
How long is an approved H-1B valid?
There is a six year limit to H-1B status, with two exceptions. H-1B status beyond six years is possible in cases where 1) an employment-based permanent residency form is filed prior to the final year of H-1B status, and 2) after a departure from the US for one year; a new six-year term of H-1B eligibility begins. Read about the university’s policy on permanent residency here. Not all positions qualify for permanent residence, but departments wishing to sponsor employees for permanent residence should begin the process as soon as the employee is eligible.
Great, we filed the petition. Can my employee start now?
For first-time employees, the answer is no. An H-1B approval notice (Form I-797) and I-94 are required to complete Form I-9 (the employment eligibility verification form completed by all employees prior to beginning US employment).
But my employee has already been here in H-1B status. Are extensions different?
Generally, an employee may continue working if the university files their H-1B petition before the current H-1B status ends. After the university files the petition requesting an extension and the petition is receipted by USCIS, the employee may continue working for up to 240 days.
But my employee holds a current H-1B from another institution. Can they start right away?
An H-1B holder from another institution cannot start working based on their current H-1B. An H-1B is employer specific and therefore an H-1B petition must be filed before the employee can start working. The employer can begin working once their H-1B petition has been delivered to USCIS. The employer can begin working once Notre Dame’s new H-1B petition has been receipted by USCIS.
I have just been informed that the petition has been approved and received a copy of the employee’s H-1B Approval Notice (I-797). What now?
Upon approval, there are two options:
- If the employee has had a change of status and has remained in the US*, the employee does not have to leave the US to obtain a visa stamp. However, should the employee ever leave the country, the employee would be required to obtain a visa stamp from a US consulate abroad prior to returning.
- If the employee is or will be outside of the US, the H-1B petition will filed for consular processing. The employee must apply for a visa stamp at a US consulate abroad. A list of US consulates can be found here. The H-1B employee is generally responsible for all visa application fees.
*Employees requesting a change of status must not travel outside of the US before the H-1B petition is approved. Doing so will cause the change of status to be considered abandoned, and denied.
If the employee has not “had their visa stamped,” what should the employee take to their interview at the consulate?
- The original H-1B approval notice (I-797);
- A copy of the original H-1B petition (I-129) filed by the university (including the signed LCA);
- Proof of employment (offer letter or recent paystubs)
- Additional documentation as specified by the consulate where the visa stamp application will take place (list of consulates here)
The employee’s petition is approved and his/her visa is stamped. Can the employee begin work now?
Once the employee has properly completed Form I-9 (the employment eligibility verification form completed by all employees prior to beginning US employment), the employee may begin work. If the employee has received an H-1B extension, the employee should immediately contact Human Resources to update their I-9 form. The employee will also need to complete the Scholar/Employee Check-In within 5 days of starting their position.
What happens if the employee changes his/her home address?
The employee must report all address changes to USCIS by filing Form AR-11, found at https://www.uscis.gov/ar-11, within 10 days of moving.
An employee in H-1B status is about to be promoted. Does the university need to file a new (or “change in employment”) H-1B petition?
Consult ISSA prior to any promotion. We will need to determine whether the occupational category and level will remain the same. If either of these change, a new H-1B petition will be required.
I plan on terminating the employment of an employee on an H-1B visa. What do I need to do?
Before terminating any employee you should always consult with the Office of the Provost, the Office for Postdoctoral Affairs, or Human Resources to utilize the university’s resources and processes, as well as to ensure that proper university protocols are followed.
In addition to usual university processes, the academic unit must submit the Report H-1B, TN, E-3, O-1 End of Employment form in ISSAlink prior to the H-1B employee’s last date of employment. Per U.S. immigration regulations, if the employer terminates employment before the end date listed on the H-1B employee’s H-1B Approval Notice, the employer is obligated to offer to pay the H-1B employee for the reasonable cost of return transportation abroad. Return transportation should be arranged no later than the end date of the H-1B approval notice or 60 days following the date of termination, whichever is earlier.
Note: The university is not required to provide any return transportation costs for the employee’s dependents. Furthermore, this obligation does not apply to employees on a term contract who are released after the term ends or to employees who voluntarily leave their position early.
This is so much to remember. Who should I contact to ask questions about H-1B cases?
ISSA’s Employment Immigration Manager, Erin Clark (eclark32@nd.edu), coordinates employment immigration services for the University. Please contact Erin directly. She will be glad to talk with you on the phone, via Zoom, in person, or via email.
ISSA can only provide services to university employees on issues regarding university employment. We cannot assist with personal immigration matters, unrelated to Notre Dame employment (other than employment-based permanent residence immigration, i.e. Labor Certification and I-140 issues).
For all personal immigration matters, the employee should contact a private immigration attorney (preferably one affiliated with AILA, the American Immigration Lawyers Association).