H1-B Information for Idaho State University and Hiring Departments.
Who is eligible?
Academic Staff
H-1B status is an appropriate classification for Idaho State University academic staff, with the following exceptions:
Visiting Scientists and Visiting Scholars are ineligible for H-1B status. Visiting scientists and scholars may be selected for participation in the Exchange Visitor Program in the professor/researcher category subject to the following conditions:
- The J-1 participant shall not be a candidate for a tenure-track position; and
- The participant has not been physically present in the United States as a non-immigrant for all or part of the 12 month period immediately preceding the date of program commencement set forth in his/her DS 2019; unless:
- The participant is transferring to the sponsor’s program, or
- The participant’s presence in the United States was of less than six months duration or,
- The participant’s presence in the United States was pursuant to a short term scholar exchange activity.
Please refer to the J1 visiting scholar information on the international programs and services web site for more information regarding the J1 visa category.
Alien graduates of foreign medical schools who are coming to the United States to practice medicine, or undertake clinical training in a residency or fellowship, are ineligible for H-1B status unless certain conditions are met, including having passed all three steps of the USMLE. Idaho State University is not approved to accept J-1 Foreign Medical Graduates; therefore, we are unable to sponsor them in the J category.
Classified Staff
Research and Clinical Technologists may qualify for H-1B status if the position requires a bachelor’s degree or higher. As a general rule, the University will not support H-1B applications for other occupational classifications. The IPO may consider other requests for H-1B status on a case-by-case basis.
Professional Staff
The University does not support H-1B sponsorship of professional staff.
H-1B Process
The H-1B petition to the USCIS represents a firm commitment by the University to fully fund the beneficiary for the entire period of time requested. The hiring department is responsible for the reasonable costs of transportation to the home country of the H-1B employee if the employment is terminated before the end of the H-1B validity period.
A foreign national may be in the US as an H-1B for up to six consecutive years . Initial admission can be up to three years; extensions of stay may be granted in up to three-year increments. Any periods of time in H-1B status with other US employers prior to Idaho State University appointment count toward the six-year limitation.
The H-1B application process should start at least six months before the begin date of the proposed employment. Ample lead time is critical since the beneficiary, if outside of the United States, cannot apply for an H-1B visa until the USCIS approves the H-1B; and the IPO receives the approval notice for mailing to the beneficiary. Foreign nationals presently in the US applying for change of status to H-1B cannot work or receive pay for services prior to receiving authorization from the USCIS. Beneficiaries seeking to continue in H-1B status with a new employer cannot receive pay for services from the new employer until the USCIS issues a receipt notice for the petition.
IPO will submit the request for H-1B classification to the US Citizenship and Immigration Services (the USCIS) on behalf of Idaho State University. The University is the "petitioner" and the foreign national whose services the University requires on a full-time, temporary basis is the "beneficiary." The beneficiary may receive salary or other compensation only from the University and not from any other employer in the United States. If the H-1B beneficiary is to work for more than one employer, each employer must submit a separate petition and receive an approval before employment can begin.
The documentation required for obtaining H-1B status with ISU is outlined below. Keep in mind, material or significant changes in the job duties or position title of an H-1B temporary worker should be reported to the IPO, as this may necessitate filing a new petition with the USCIS. The fee for the H-1B petition is $320 and the anti-fraud fee is $500. The petitioner is required to pay the anti-fraud fee for all new H1-B employees. This fee is not required for petitions that must be renewed. Those who are using the “portability clause” to transfer from one institution to ISU ARE subject to the fee. Departments should request the anti-fraud fee well in advance so that it is ready when the completed petition is ready for mailing to the USCIS.
Employee Documentation.
- Completed H1-B non-immigrant questionnaire
- Copy of the offer letter from the employing department addressed to the beneficiary describing the terms and duration of the employment. The letter should include a description of the services to be performed by the beneficiary, minimum qualifications necessary for performing the duties and how the beneficiary meets those qualifications, dates of employment, and salary (which must meet or exceed the department of labor prevailing wage for the state).
- Copy of the beneficiary’s curriculum vitae.
- Copies of the beneficiary’s degree(s), diplomas and transcripts, or documents which demonstrate that the beneficiary has the academic background and technical training required for the job. The beneficiary must be fully qualified for the position at the time the petition is filed with the USCIS.
Foreign language documents must be accompanied with a full English translation certified by the translator as complete and correct.
- If the beneficiary is currently in the US, include a legible photocopy of his/her Form I-94 “Arrival/Departure Record” (both sides) and photocopies of any and all other immigration documents previously issued to the beneficiary (e.g. forms I-20, DS2019, forms I-797 and notice of action for any previous changes in status that were granted).
- Copies of passport and visas issued.
- Graduates of foreign medical schools must provide additional documentation to qualify for H-1B status in order to practice medicine in the US, or undertake clinical training in a residency or fellowship. Full licensing is required BEFORE applying for the H1-B status.
- $320 H-1B application fee. This check should be made payable to the Department of Homeland Security.
Employer Documentation
- Actual Wage Worksheet
- Actual Wage Memorandum
- Labor Condition Statement
- $500.00 Anti-Fraud Fee. This check should be made payable to the Department of Homeland Security
- H1-B Documentation Checklist
An application for change of status to H-4 may need to be filed on behalf of dependent family members currently in the US. The form needed for this is the I-539: Application to Extend/Change Nonimmigrant Status. It may be obtained from the USCIS forms page: http://uscis.gov/graphics/formsfee/forms/index.htm . The principal dependent (usually the spouse) completes the I-539 and attaches photocopies of both sides of form I-94 Arrival/Departure Record for each of the dependents, as well as submit copies of passport and visa. Be sure to include the appropriate fee of $300. This should be mailed together with the I-129 petition for H1-B status. Mailing the form without the I-129 can cause significant delays in changing or extending the status of the beneficiary’s dependents. Please note that ISU cannot advise on the H4 application, since it will be considered an unauthorized practice of law. Mailing of the H4 application with the H-1B is done as a courtesy.
The next step within IPO
Once the prevailing wage is obtained and the Labor Condition Application is submitted, IPO will send the LCA to the hiring department and Human Resources for posting. These postings must be conspicuously placed at these two locations for 10 days. After which, the petition will be filed with the USCIS. Once we receive the approval notice and if the beneficiary is outside the US, the beneficiary may then apply for an H-1B visa at the nearest US embassy or consulate. Dependent family members may also apply for their H-4 visas at that time. The IPO will send a copy of the approval notice along with all the supporting H1-B documentation to the candidate to apply for a visa at a US consulate or embassy abroad. By US immigration law, t he candidate can enter no earlier than 10 days before the beginning date on his contract.
If the beneficiary is in the US in another nonimmigrant status, the USCIS will change the beneficiary's status, not his visa. If the candidate’s status is changed within the US and he travels outside the US FOR ANY REASON, he must apply for an H1-B visa at the nearest US embassy or consulate in the country to which he is traveling! The USCIS will also change the status of dependent family members to H-4, if the Form I-539 was filed concurrently with the H-1B petition.
If the beneficiary currently holds H-1B status through another employer, the USCIS will extend and amend the beneficiary's stay to permit employment at the University for the validity of the approved petition. (Family members file Form I-539).
Regular Processing: Under regular processing the H1-B application can be approved in 1-4 months depending on the caseload at USCIS. Submitting the H1-B applications at least 6 months prior to the start of employment will eliminate the need in most cases for premium processing.
Premium Processing : Payment of a $1000 fee ( to be paid by an additional check—not to be included in the H1-B filing fee check of $320) will guarantee adjudication of the I-129 within 15 days. Please note that USCIS guarantees a response which may or may not include an approval. Request for premium processing may be filed concurrently with the I-129 or later to expedite a pending H1-B application.
Notification: The USCIS will notify the IPO of the decision on Form I-797 “Notice of Action.” This is the petitioner’s proof that the H1-B status has been granted or denied.
TN Classification
Employment of Canadian or Mexican Citizens
The TN (Trade NAFTA) classification is available to a Canadian or Mexican citizen who seeks to enter the US on a temporary basis to work in a professional-level job under provisions of the North American Free Trade Agreement. Mexicans applying for TN status face additional requirements that Canadians do not. The procedures for Mexican citizens are not covered here. TN is a nonimmigrant status. The applicant must establish to the satisfaction of the US Citizenship and Immigration Service (THE USCIS) that the employment opportunity is both temporary and short-term. For this reason, TN status is not recommended for individuals who plan to apply for lawful permanent residence. It would be better to obtain H-1B status, which permits "dual intent."
The individual must be employed in one of the professions listed in the federal regulations at 8 CFR 214.6 and have at least a baccalaureate degree unless an alternative credential is specified. For more information and a list of the jobs that qualify, please go to: http://travel.state.gov/tn_visas.html . A Canadian citizen may request admission to the US as a TN professional at a US port of entry, a US airport handling international traffic, or at a US pre-clearance/pre-flight station. No petition, labor certification, visa or prior approval is required. Please visit the US Department of State website at http://travel.state.gov/visa/
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