Hosting H-1B Employees

The H-1B petition process can be lengthy. CGPS needs time to review the H-1B request, make sure all required documents have been provided, prepare the required forms, and submit the forms to various government agencies. Processing times with government agencies are also subject to change.

For this reason, we recommend that departments initiate the H-1B process at least 8-9 months before the proposed H-1B start date. Due to prevailing wage determination processing timelines with the U.S. DOL, we recommend that H-1B cases for non-CBA employees be initiated at least 15 months for regular processing and 10 months for premium processing prior to the proposed H-1B start date. H-1B case initiation (including new employment, extension, transfer, and change of status) are facilitated through Terra Dotta. Timely case initiation may minimize the need for Premium Processing, possibility of delayed start, or interruption of employment authorization.

Review this diagram of the H-1B process with a timeline.

Academic credentials are included in H-1B petitions as evidence the foreign national has a bachelor’s or higher degree in a field related to the occupation.

If the foreign national provides academic credentials from a foreign educational institution, CGPS requires a professional credential evaluation of the highest degree in a field related to the H-1B position. The evaluation is then submitted to USCIS along with the diplomas to verify the foreign degree’s equivalency to U.S. degrees.

Please also provide transcripts as well, if possible. In many cases, a transcript is required to show that the degree was in the same or similar field as the position. This is true for both foreign degrees and U.S. degrees when the diploma does not clearly state the field of study (like University of Delaware PhD diplomas). Even if the field of study is listed on the diploma, USCIS may want to consult the transcript.

The University of Delaware is required to pay all H-1B workers the greater of the Actual Wage or Prevailing Wage for the given position.

Actual Wage: The actual wage is set by completing the Actual Wage Determination chart. The department will collect and evaluate wage information for other comparable employees in the same position within the department. It is important that the department complete this chart accurately and fully to provide justification for differences in actual wage. This chart is required to be filed in the employee’s Public Access File (PAF) for DOL review in the event of an audit. The Actual Wage Determination is collected through completion of the HR Classification and Compensation Review Form (for non-CBA staff positions) or the Actual Wage Determination Form (for CBA employees and postdoctoral researchers/limited term researchers). Both forms are available via Terra Dotta.

Prevailing Wage: The prevailing wage is the wage normally paid for similar work in the geographic area of employment. If the sponsoring department is unable to pay at least the prevailing wage set by the CBA or by the Department of Labor, then an H-1B visa cannot be processed. For this reason, H-1B visas may not be appropriate for all positions at the university. Please contact CGPS to discuss concerns regarding the prevailing wage and H-1B eligibility as well as other visa options.

• CBA Employees: For Collective Bargaining Agreement (CBA) subject positions, the prevailing wage is the wage set by the CBA.

• Non-CBA Employees: For staff positions not covered by the CBA, CGPS will use information such as job duties, geographic location of the employment, and minimum qualifications (degree level, post-graduate experience, etc.) to prepare and file a Prevailing Wage Determination request with the Department of Labor. There is always a risk of Prevailing Wage Determinations coming back higher than the salary initially offered. In the event the Department of Labor returns a prevailing wage higher than the offered salary, the department will either 1) increase the salary for the Foreign National and any comparable employees OR 2) elect to not proceed with H-1B sponsorship.

Notify CGPS of Salary Changes: If an H-1B worker’s salary substantially changes, academic units must inform CGPS. CGPS may request additional documentation.

If the position is a non-CBA subject position, CGPS will draft a notice of filing and coordinate with HR to post the notice electronically via UDEL careers for a period of at least 10 consecutive business days.

The purpose of this notification is to provide information about the LCA filing to current employees at the same worksite and in the same occupational classification as the foreign national. This notification is required by Department of Labor regulations.

If an H-1Bs employee’s position changes in any way, CGPS must be informed immediately. Academic units must contact CGPS if the H-1B worker’s position changes in any way. This includes changes in job title, salary, job duties, worksite address, or a change to or from full-time or part-time work. CGPS will then request the information it needs to establish whether the required wage has changed and whether a new labor certification application and/or H-1B petition must be filed before the change can take effect.

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. The six-year time limit includes periods of H-1B status accrued while working for other employers.

An exception to the six-year H-1B limit may be available if one (or more) of the following scenarios applies:

• The H-1B worker is the beneficiary of an approved employment-based immigrant petition and is not able to apply for adjustment of status to lawful permanent residency because of the unavailability of an immigrant visa number.

• The H-1B worker is the beneficiary of an application for alien employment certification application, application for permanent employment certification, and/or Form I-140 Immigrant Petition for Alien, and the application or petition was filed and has been pending for at least 365 days before the extension is requested

• The H-1B worker spent time outside the U.S. during their six-years in H-1B status. Time spent outside the U.S. can be “recaptured” to extend status beyond the six-year limit

• The H-1B worker’s U.S. stays are intermittent, seasonal, or an aggregate of less than six months a year

These exceptions are not available to everyone. Availability depends on an individual’s immigration history and varies case by case. Contact CGPS to determine whether an extension beyond six years may be available.

If no exception is available, upon completing six years stay in the U.S. in H-1B status, the H-1B status holder must remain outside the U.S. for at least one year before re-entering the U.S. in the H-1B category.

The process to extend H-1B status is, for the most part, the same as the process for initial petitions. The department will initiate the extension which CGPS will use to file a new prevailing wage determination (if needed) and a new Labor Certification Application (LCA). CGPS must file updated versions of forms, letters, and supporting documents with USCIS for the extension along with the base filing fee and, if needed, the premium processing fee. Departments are also required to pay the appropriate International Service Fee for each extension.

There are some differences between initial petitions and extensions though. The Anti-Fraud Fee is NOT required for extension applications with the same employer. Also, if (a) the foreign national is already in H-1B status, (b) the extension petition is filed while the H-1B status holder is maintaining their authorized employment, and (c) the extension is filed prior to the current status’s expiration date, then H-1B/H-4 status holders remain in legal status while the extension is being processed by USCIS. Also the H-1B status holder can continue to legally work for the petitioning employer for up to 240 days while the petition is pending.

For information about what employees should do to maintain H-1B status, see Maintaining Lawful H-1B Temporary Workers Status.

If the employer terminates the H-1B worker’s employment prior to the end of the H-1B petition validity period, the employer is obligated to provide the H-1B status holder the reasonable cost of transportation to their last place of residence abroad. This requirement does not apply to dependents. In order to comply with federal regulations, the University of Delaware must document that the H-1B status holder was offered return transportation (whether or not the foreign national accepted the offer). For that reason please contact CGPS before terminating an H-1B employee so that CGPS can help ensure regulatory compliance.

However, if the H-1B visa holder resigns the position, the employer does not have to pay for return transportation.

If an H-1B status holder changes employers, the new employer must obtain approval of its own new H-1B petition from USCIS. Under USCIS regulations, a current H-1B status holder may begin to work for a new H-1B employer as soon as the new employer files a non-frivolous H-1B petition for the new employment, and the H-1B status holder may work for 240 days while the application is pending. The new employer and H-1B status holder do not have to wait for the new petition to be approved by the USCIS for the new employment to begin, so long as when the petition is filed the H-1B status holder is (a) actually in lawful H-1B status, and (b) engaged only in the work already authorized. If a foreign national is currently in a non-immigrant status other than H1-B, he/she may not begin work with the new H-1B employer until USCIS approves the H-1B petition.

It is possible to have more than one concurrent H-1B position. However, both positions must be authorized by an approved H-1B petition. For example, if a current UD H-1B employee wants to accept a second job at a different employer while still working for UD, that new employer must file a new H-1B petition for concurrent employment.

Resigning prior to changing employers: The H-1B category is not set up to accommodate the "real-world" practice of changing employment. The validity of an H-1B worker's nonimmigrant status depends upon engaging in the employment described in the employer's H-1B petition. There is no real "grace period" recognized in H-1B status. Because of this, an H-1B worker who resigns his or her position prior to the new employer's filing a new I-129 petition might be seen by USCIS as being in violation of his or her H-1B status, and is therefore ineligible for a transfer or extension of stay. USCIS may want to see evidence such as W-2 forms, paycheck stubs, or wage and earnings statements, showing that the H-1B worker was in fact employed by the prior petitioner and otherwise maintaining status. If the employee is unable to provide evidence that there is no gap in employment, an H-1B change in employer petition cannot be issued.