Definitions

Upon being granted admission into the US by the Department of Homeland Security, Customs and Border Protection, the foreign national is accorded a nonimmigrant status.

The Actual Wage Determination is wage range paid to all individuals within a department who are similarly employed and possess substantially similar experience and qualifications as the prospective H-1B employee for the position. An H-1B employee must be paid at or above the actual wage range of wages currently paid to comparable employees.

The Immigration and Nationality Act (INA) requires that the hiring of a foreign worker will not adversely affect the wages and working conditions of U.S. workers comparably employed. To comply with the statute, regulations require that the wages offered to a foreign worker must be the higher of the actual or prevailing wage rate for the occupational classification in the area of employment. The prevailing wage rate is defined as the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. Policy at UNC-CH mandates the use of the U.S.  Department of Labor’s certified prevailing wage determination.

Before an H-1B petition can be filed, a “Labor Condition Application” (LCA) must be filed with and certified by the U.S. Department of Labor (DOL). In the LCA, the employer must make the following four attestations: 1. The H-1B employee will be paid the “required wage” (the actual wage that similarly qualified employees are receiving in that department, i.e., the place of employment) or the “prevailing wage” for the geographic area, whichever is greater). 2. The employment of an H-1B worker will not “adversely affect” the working conditions of other similarly employed persons at the place of employment. 3. There is no current strike or lockout at the place of employment. 4. A notice of the filing of the LCA has been posted in at least two conspicuous locations at the place of employment for a minimum of ten business days excluding weekends and holidays. The Labor Condition Application required the employer to pay the stated salary. Benching is not permitted. The employee cannot be dropped to less than 100% of FTE. Failure to comply with all the terms and conditions of the LCA can result in monetary penalties and/or debarment from the H-1B program

Immigration regulations require that all foreign degrees be translated and evaluated. Credential evaluations must be done by a professional credentials evaluator service that specializes in evaluating foreign credentials. A list of credential evaluating companies that are members of the National Association of Credential Evaluation Services can be found on http://www.naces.org/aboutnaces.htm[

A petition can be filed with USCIS requesting to change from one lawful status to another lawful status while remaining in the U.S. The foreign national should not depart the U.S. while an H-1B for a change of status is pending with USCIS. Doing so is considered an abandonment of the petition and will require that a new petition be filed..

Under certain circumstances, a new employer can file an H-1B for a foreign national who is currently in lawful H-1B status with another employer.

ISSS may petition immigration to extend the period of time for a current UNC-CH employee. A request for an extension can be for a maximum of 3 years or less as long as the beneficiary has not exceeded the 6 year maximum time in H-1B status.

If the applicant is outside of the U.S., a petition is first filed with U.S. Citizenship and Immigration Services (USCIS). When the H-1B is approved, USCIS will notify the consulate abroad of the approval. USCIS sends the original H-1B approval notice (I-797 Notice of Action) to ISSS.  ISSS will send the prospective employee the materials necessary to apply for the H-1B visa.

When there is a material change in the duties or terms and conditions of employment. of an H-1B worker, an amended H-1B petition may need to be filed with USCIS before the new terms and conditions can take effect.

At the earliest, the employer may submit a Labor Condition Application 6 months before the intended beginning effective date of the H-1B. The H-1B application process is very long and requires much documentation from both the department and applicant. It is recommended that departments begin any new H-1B application, extension, or amendment as close to 6 months in advance of the intended start date as possible. If timing is a critical issue, departments have the option of filing for Premium Processing. Premium Processing guarantees a decision on an H-1B petition within 15 days of the receipt by US Citizenship and Immigration Services of the H-1B application. The fee for Premium Processing is $1225 in addition to the regular application fees.

The maximum allowable time an individual can maintain H-1B status is 6 years, including any time period the employee maintained H-1B status for another employer and had not spent a minimum of 365 days outside of the US. Short periods of time spent out of the U.S. are not counted towards the 6 year maximum and may be recaptured if necessary. The hiring department should only request a time period for which funding is available