Bringing a visiting scholar to UD on a J-1 Visa
Academic departments interested in hosting an exchange visitor must complete the Request for Visiting Scholar Form and return it to OISS along with a copy of the offer letter, proof of funding if UD is not funding the scholar, and a completed FedEx or DHL International Air bill.
The hosting faculty member, as well as the department chair, must sign the Request for Visiting Scholar Form. Forms will not be processed without the appropriate signatures. A DS-2019 form (Certificate of Eligibility) will be sent to the exchange visitor along with instructions on paying the SEVIS fee and applying for a visa at the US Consulate or embassy.
As of 9/1/11, UD implemented a $100 International Service Fee. This fee can be paid by either the department or the visiting scholar. If the fee is paid by the department, the Department Fee Payment Form must be completed and sent to OISS along with the Request for Visiting Scholar Form. If the visiting scholar will be paying the fee, he can do so upon arrival with either cash or money order. If he will be paid by UD, he can choose payroll deduction by completing the Payroll Deduction Authorization Form and sending it to OISS.
Funding is required for a J-1 visiting scholar
The minimum amount required for 1 year is $10,000 plus $3,000 for each dependent. Funding can come from UD, personal/family funds, home government or home institution. Proof of funding is required before a DS-2019 form can be issued.
Medical/repatriation/medical evacuation insurance is a Department of State requirement for all J-1/J-2 visa holders. If a visiting scholar is eligible for UD benefits, medical coverage is provided by either Blue Cross or Aetna, but repatriation/medical evacuation is not covered and must be purchased separately. It can be purchased online at www.betins.com.
J-1 categories and Duration of Stay
- Research Scholar: A research scholar visa can be issued from 3 weeks to 5 years. Extensions beyond 5 years are not possible.
- Short Term Scholar: A short-term scholar visa can be issued from 1 day to 6 months. Extensions beyond 6 months are not possible.
Participating in occasional short-term consultations or lectures
A scholar can participate in occasional short-term consultations or lectures if directly related to the objectives of the exchange visitor's program, be incidental to his primary program, and not delay the completion date of his program. The exchange visitor must provide OISS with an invitation letter from the institution and obtain permission from his supervisor at UD, and in turn, OISS will issue a letter granting permission for this activity. OISS must also report this activity in SEVIS.
2-Year Home Residence Requirement
J-1 visiting scholars may be subject to the 2-year home residence requirement based on the skills list or government funding. This means that the scholar must remain in his home country for an aggregate of 2 years before being eligible for certain immigration benefits. However, he may be able to return to the US as a short-term scholar. Information on how to apply for a waiver of the 2-year home residence requirement can be found at http://travel.state.gov/visa/temp/info/info_5502.html. However, if the visiting scholar leaves the US after a waiver has been granted and enters the US on another J-1, he will
be subject to the 2-year home residence requirement again. If a J-1 is subject to the 2-year home residence requirement, dependents are also subject.
An individual who participates in the Exchange Visitor Program as a Professor or Research Scholar becomes subject to a 24-month bar on "repeat participation" in those categories after completing his program. If before the full 5-year period is over, the Professor or Research Scholar completes his program, he must wait for 2 years before beginning a new program as a J-1 Professor or Research Scholar. There is no waiver for the 24-month bar. Dependents are also subject to the 24-month bar.
Bringing a visiting scholar to UD on an H1B Visa
The H-1B visa category is for foreign nationals who are offered temporary employment in the United States to render services in “specialty occupations.” An offer of employment is required from an U.S. employer who must file the petition. A foreign national cannot self-petition for an H-1B visa. H-1B employment must be temporary, even if the foreign national may be coming here to fill a permanent position. There must be an employer-employee relationship (i.e., the employer must pay a regular salary or grant payments to the alien). The foreign national must be qualified to fill the H-1B visa position. He/she should have at least an U.S. bachelor's degree (or equivalent) and the appropriate education level in the field related to the nature of job.
H-1B visas are employer specific. Employment is limited to the sponsoring H-1B employer and for employment specified in the H-1B petition. H-1B visas can be for full-time or part-time employment.
J visa holders who are subject to 212 (e) 2-year foreign residency requirements are not eligible for H-1B visa. Unless the individual is able to obtain a waiver of the 2-year requirement, the only non-immigrant visa option for individuals in this category is an O visa.
The H-1B visa holder and dependents must be keep valid passports at all times throughout their stay in the U.S.
International Service Fee
Each Foreign National seeking an H-1B is required to pay a $250 International Service. All fees should be made payable by cash, check or money order to OISS. Departments must cover the fee for the employees by completing the Department Payment Authorization form (PDF / Word / Online). Because this is an application fee it will be assessed for each application (including extensions). Information concerning this fee can be found here.
H-1B Visa Application Process
The hiring department must submit a completed H-1B Questionnaire to the Office for International Students and Scholars with three (3) copies of all requested documents. (listed on the Questionnaire)
Keep in mind that the process is time consuming. It can take 60 to 120 days for USCIS to adjudicate the petition and the prevailing wage will take an additional 6-8 weeks. We HIGHLY recommend that you submit your H1B questionnaire, whether a new hire or an extension, at least six months prior to the start date or expiration of the current status.
1. The department must notify OISS of their intent to hire and sponsor an international for the H-1B visa. Upon notifying OISS, the department will submit the H1B questionnaire and all required documents listed on the questionnaire in a timely manner.
2. The OISS will process the Prevailing Wage Request. It can take up to 8 weeks to receive a response from the Department of Labor.
3. The OISS processes the Labor Condition Application (LCA) and provides the department with the required 10 day posting in the form of a "Notice of Filing". The LCA is usually approved within 7-10 days.
4. The OISS submits an H-1B petition (Form I-129, the DOL-certified LCA, and supporting documents) to USCIS. Approval may take up to 120 days. (Premium Processing is available to the department or applicant. This process allows a response in 15 business days for a fee of $1225 payable USCIS)
5. Employment is permitted once we receive the approval notice and the I-9 is completed.
The current USCIS filing fee for initial or extension of H-1B visa is $325. The fee for premium processing is $1,225. All checks should be made payable to “US Citizenship and Immigration Services” or “USCIS.” As of March 8, 2005, all employers will be required to pay a mandatory “Anti Fraud Fee” of $500 in addition to the above stated fees for the initial application. The $500 fee must be paid by University of Delaware (not the H-1B applicant) and must be payable to the “Department of Homeland Security.” (not needed for extensions)
Update: As of November 1st 2012, the Hiring department will cover all costs associate with processing and filing the H1B application. This includes the application fee ($325), the Anti-fraud fee ($500) and the service fee ($250). If the H-1B employee pays these costs, such payments are viewed under the department of labor regulations as an "unauthorized deduction" from the employee's salary.
H-1B fee specifics table
Who must pay?
I-129 Base Fee
Premium Processing Fee
Employer or (employee if requested for personal reasons)
Separate check, Cash or Form
H-1B Reform Act of 2004
Beginning March 8, 2005, the H-1B Reform Act of 2004 will include a mandatory $500 Anti-Fraud fee for each initial H-1B application. This fee WILL NOT affect applications for extension of H-1B visa holders with the same employer.
The $500 fee is in addition to the regular processing fee of $325 and the optional $1225 fee for Premium Processing. The employee cannot pay the anti-fraud fee either directly or through salary deduction. U.S. Citizenship and Immigration Services consider this fee to be an employer business expense that cannot be passed on to the alien beneficiary (employee). A faculty sponsor or department, laboratory, or center can only sponsor an employee for an H-1B visa if the $500 fee can be paid (using unrestricted funds, discretionary funds, or other sources meeting the guidelines). A University of Delaware check for $500, payable to the Department of Homeland Security, should be submitted with the other required application documents. The sponsoring department must pay the fee for any tenured or tenure-track faculty member at the time that an H-1B petition is filed.
Processing Times for H-1B Visas
The current USCIS processing time for both initial H-1B visa and H-1B visa extensions is approximately 5 months. Cases processed under premium processing (extra $1,225 filing fee) are usually processed by USCIS within 15 days from receipt by USCIS. In addition to the USCIS processing, the applicant should account for OISS (one week) and DOL (2 weeks) processing. Educational institutions are not subject to the annual H-1B visa quota that begins at the beginning of each federal government fiscal year on 1st October. An H-1B applicant for extension or transfer may continue to work and be paid for 240 days while the application is pending.
Generally, specialty occupations are those that require at least a bachelor's degree or equivalent academic credits and/or work experience. USCIS will accept three years of professional experience as equivalent to one year of university education (i.e., two years of university education + 6 years of professional experience = a four-year university degree). USCIS will accept an earned bachelor's degree + five years of professional experience to be equivalent to a master's degree. There is no equivalent accepted for a doctorate or professional degree; it must be an earned degree. An evaluation from a professional credentials evaluation agency may be required to verify foreign degree equivalency to U.S degrees.
The University of Delaware is required to pay the H-1B Worker the greater of the Actual Wage or Prevailing Wage. For this reason, the University is required to explain how it arrived at the Actual Wage for the position (e.g., wage/salary range for the position and the pay differentials for various factors such as education and job experience). The documentation need only be detailed enough that a third party can “understand how the employer applied its pay system (or interpreted its Collective Bargaining Agreement) to arrive at the actual wage for ‘this’ position.
A foreign national must be paid the prevailing wage for H-1B employment. Prevailing wage is what is normally paid for similar work in the geographic area of employment. If a wage is governed by a Collective Bargaining Agreement (CBA) - then such wage will be the prevailing wage. If the wage is not governed by a CBA, then the wage is typically obtained via the Online Wage Library or via an authoritative wage survey. Unless the prevailing wage is offered, an H-1B visa cannot be processed. Please contact the Office for International Students and Scholars (OISS) for information on the acceptable prevailing wage for the position offered. Academic units are required to provide OISS with documentation when the H-1B worker's salary is substantially changed.
Notice of Filing
If the position is not governed by CBA, the Department must post a notice of filing (provided by OISS) in two conspicuous places (where notices are commonly posted) for 10 consecutive business days.
Change of Employers
If the H-1B visa holder changes employers, the new employer must obtain approval of its own new H-1B petition from the USCIS. It is possible to have more than one concurrent H-1B visa. Under current USCIS regulations a current H-1B visa holder may begin to work with a new H-1B employer as soon as the new employer files a non-frivolous H-1B Visa petition for the new employment and work for 240 days while the application is pending. The new employer and beneficiary do not have to wait for the new petition to be approved by the USCIS for the new employment to begin. However, the H-1B visa holder must be in lawful status; engaged only in authorized work; and must be on a current H-1B status. If a foreign national is currently in a visa status other than H1-B, he/she cannot begin work with an H-1B employer until USCIS approves the H-1B visa.
Duration of H-1B Visa
H-1B regulations allow a foreign national to hold H-1B status for up to six years. An employer may request up to three years on the initial H-1B petition, and extensions may be requested for a maximum period of three years for a total of six years.
There are some exceptions to the six-year limit on H-1B visas:
- When the alien's U.S. stays are intermittent, seasonal, or an aggregate of less than six months a year;
- Extension beyond six-years is permissible for H-1B visa holders for whom an alien labor certification application and/or Form I-140 Immigration Petition for Alien was filed and has been pending for at least 365 days before the extension is requested;
- The alien is the beneficiary of an approved EB immigration petition and is not able to file to adjust status to U.S. permanent legal residence based on the unavailability of an immigrant visa number
- The six years time limit includes periods of H-1B stay for previous employers and all time in the U.S. Upon completing six years stay in the U.S. in H status and if the H-1B visa holder and dependents are not eligible for any exception, he/she must reside in his home country for a period of one year before re-entering the US in the H-1B category.
Extensions of Stay for H-1B Visa Holders
An H-1B visa can be extended for up to a maximum of six years as discussed above. The extension process is basically re-applying for H-1B visa. Essentially updated versions of forms, letters and supporting documents that are submitted to USCIS for the initial H-1B visa have to be re-submitted to USCIS for the extension. The $500 "Anti Fraud Fee" is NOT required for extension applications. H-1B/H-4 visa holders remain in legal status while the extension is being processed by USCIS and the H-1B visa holder can continue to legally work for 240 days with the same employer while the H-1B visa extension is being processed by USCIS only if the extension is filed prior to the current expiration date.
On-Going Employer Obligation
If the employer terminates the H-1B worker prior to the end of the H-1B petition validity period, the employer is obligated to pay reasonable cost of transportation to the H-1B worker's last place of residence abroad. This requirement does not apply to dependents of the H-1B worker. If the H-1B visa holder terminates the employment, the employer does not have to pay for the return transportation.
Bringing a visiting scholar to UD as a Temporary Visitors for Business
The "visitor" visa is a nonimmigrant visa for persons desiring to enter the United States temporarily for business (B-1), for pleasure or medical treatment (B-2), or combination of both (B-1/B-2) purposes.
International visitors coming to UD for a short period of time (usually few days) to perform limited services, can apply for B-1 (Visitor for Business) visa or if eligible, enter on a WB visa. The department can simply issue a letter of invitation from the Department Chair/Director/Dean.
A visiting scholar can be classified as a B-1 visitors for business, if they are traveling to the United States to:
- Engage in commercial transactions, which do not involve gainful employment in the United States
- Negotiate contracts
- Consult with business associates
- Participate in scientific, educational, professional, or business conventions, conferences, or seminars
NOTE: B-1/WB or B-2/WT status holders should not engage in study, research, or employment in the United States.
Visa Waiver program
Travelers coming to the U.S. for tourism or business for 90 days or less from qualified countries may be eligible to visit the U.S. without a visa if they meet the visa waiver program requirements. Those entering for business purposes are admitted in WB status. Those entering for purposes of pleasure the are admitted in WT status.
Currently, 36 countries participate in the Visa Waiver Program, as shown below:
|Greece||the Netherlands||United Kingdom|
A visiting scholar on a B-1 visa may receive reimbursement for expenses such as travel, meals,lodging and other basic services incidental to the temporary stay.
Payment of an honorarium to a B-1 visitor may be permitted if:
- The activity lasts no more than 9 days.
- The services conducted are of direct benefit to the University, and
- The visitor has not accepted payments from more than 5 institutions in the previous 6 months