H-1B Overview
The H-1B non-immigrant classification is for the employment of foreign workers in “specialty occupation” in the United States. The Immigration and Nationality Act (INA) statue defines “specialty occupation” for H-1B purposes as “an occupation that requires theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”
The H-1B Specialty Occupation worker may be admitted for a period of up to three years. The status can be extended but generally cannot go beyond a total of six years, though some exceptions do apply.
To be eligible for sponsorship for H-1B status at James Madison University, a position must meet the following criteria:
- It is a specialty occupation requiring the minimum of a bachelor’s degree or equivalent in the relevant field of study.
- It is a full-time, salaried position.
- The salary must meet Department of Labor wage requirements.
The H-1B Process
After ISSS determines that the position qualifies for the H-1B specialty occupation and the employee meets the requirements, ISSS will process the H-1B petition.
The process includes:
- The filing of the Labor Condition Application (LCA) with U.S. Department of Labor indicates that JMU will pay no less than the prevailing wage for the position and post a Notice of Intent to file for 10 business days.
- A copy of the LCA will be provided to the employee and filed with the H-1B petition.
- ISSS will collect the necessary documents for filing the H-1B petition with USCIS.
- ISSS will file the H-1B petition, with associated filing fees.
- USCIS adjudicates H-1B petitions. USCIS processing times can be viewed on their website.
- The approval notice will be sent to ISSS
- For employees inside the U.S., the approval notice will be provided to the employee.
- For employees outside the U.S., the sponsoring department will send the approval notice to the employee, who can apply for the H-1B visa at the U.S. Embassy in their home country.
- *An approval is not guaranteed, as the decision is solely at the discretion of USCIS.
Additional information:
- If an employee is seeking a change of status to H-1B, they must wait for the H-1B petition to be approved before starting employment under the H-1B status.
- If an employee already has H-1B status and is changing employers (to JMU), they may begin employment with JMU once the H-1B petition has been filed, the case is considered pending, and the start date listed on the H-1B petition has passed.
- If an employee has a timely extension of stay filed with their current H-1B status, they may continue employment with JMU for up to 240 days beyond the previous expiration date.
- All employees who received a degree outside of the U.S. are required to obtain a credential evaluation.
JMU Policies
- The employer is required to cover the application fees for the H-1B petition. CGE-ISSS is currently covering the application fee ($460) and antifraud fee ($500).
- Premium Processing provides expedited processing for the H-1B petition (optional). When requesting this service, USCIS will “process” the petition within 15 business days. The cost for premium processing is $2,965, which is at the expense of the department.
- All dependent forms and expenses are the responsibility of the employee.
- Policy 1326 – Immigration Reform and Control Act
Reminders for Maintaining H-1B Status
Employment: An H-1B Approval is employer specific, position specific, and location specific. An H-1B employee can only work for a specific H-1B petitioner performing the specific job duties in the location indicated in the H-1B petition. If there is a material change related to your job, such as your department’s organizational structure, your employment site (changed to a home office), or job duties during the validity of the H-1B employment, please notify International Student & Scholar Services (ISSS) immediately to determine if such changes impact your immigration status.
Extensions: If you would like to request an extension of your H-1B status, you must contact the ISSS at least 6 months before your status expires.
Address changes: H-1B employees must inform ISSS of any possible address change to determine if JMU needs to amend the H-1B petition. Also, H-1B employees must file Form AR-11 within 10 days of an address change. This can be done using Form AR-11 through the USCIS website.
Travel
- Travel outside the US is at the discretion of the employee. Be advised that entry into the US, requires a valid passport and H-1B visa (unless a Canadian citizen, see below). Best practice is to schedule your visa interview before leaving the US.
- Canadian citizens do not need a visa to enter the U.S. Therefore, a Canadian employee will travel to the U.S with the approval notice and petition packet.
Honoraria, Outside Employment, and Institutional Joint Ventures
- H-1B employees may not accept honoraria, wage or salary from outside institutions or employers.
- H-1B employees may not accept employment from outside institutions or employers unless they have filed a concurrent H-1B petition for such employment. Any outside employment must be approved by their supervisor.
- H-1B employees may not receive external funding (e.g., grants, fellowships, etc.) from outside organizations, institutions or employers. However, the employee may receive the funding if the funds are administered through the university or if a concurrent H-1B petition has been filed by the other organization or institution.
- In cases where a formal joint venture, relationship, or sponsorship exists between the university and another organization or institution, an employee sponsored for H-1B status by JMU may work on projects pursuant to that joint venture; however, the employee may only receive remuneration for such services directly from the university unless a concurrent H-1B petition has been filed by the other organization or institution.
- H-1B employees may receive payment or reimbursement for travel expenses associated with occasional speeches, lectures, conferences, or consultations at other institutions, if these activities are incidental to the H-1B employment.
Further questions?
If you have any further questions about the H-1B process, please contact Sherry Lu.
The above information is general in nature and should not be relied on as legal advice, and you should seek the guidance of a qualified immigration counsel for answers to your specific questions and situation.
