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H-1b Visas for Faculty and Employees

Jan. 3, 2013

The Office of General Counsel processes H-1B petitions for eligible positions at Baylor University. An H-1B is a nonimmigrant visa status for a foreign national who will perform services in a specialty occupation. A specialty occupation is one that requires a specialized body of knowledge and attainment of a bachelor's or higher degree or its equivalent as a minimum for entry into the occupation. H-1B work-authorization is strictly limited to employment by the sponsoring employer.

An H-1b petition is only part of the overall process of legally obtaining entrance to or maintaining presence in, the United States. The process has been created by federal law and is implemented by regulations issued by the Executive Branch of the United States that must be followed by Baylor and the foreign national. Some have said that the process for obtaining an H-1b Visa is complicated, perhaps because it may involve the U.S. Department of Labor (DOL), the United States Citizen & Immigration Services (USCIS) and the U.S. Department of State (DOS). Immigration law has some complicated social policies underpinning the rules. In the context of employment, the key concern is that American jobs should generally be preserved for American workers. Consequently, Baylor is not permitted to hire foreign national workers just because Baylor wishes to - Baylor must find the rule of law that permits employment under the circumstances of the specific situation.

The regulations pertaining to the H-1B nonimmigrant status indicate the following:

• H-1B is job specific - the number of hours, job title, nature of job duties and salary are all specified with the corresponding H-1B petition.

• H-1B is location specific - work that will be performed outside of Baylor University or a change in departments during the approved H-1B status may require an amendment of the H-1B petition.

• H-1B is time specific - the H-1B status carries a maximum period of validity of six years. Initially it is granted for a period of up to three years, which can then be extended for an additional three years. Extensions beyond the six-year maximum period are possible but only in limited circumstances.

• H-1B status is considered a "Specialty Occupation" for which the nonimmigrant has at least a bachelor's degree in the discipline for which he or she is being hired. For example, USCIS would not approve an H-1B for a person with a degree in Physics to teach English.

Some of the other nonimmigrant categories include F (students), J (exchange visitors) and TN (Canadian and Mexican workers who enter under NAFTA). It is possible to have a faculty person begin work at Baylor in any of these status and then file for a change to the H-1B status. However, if a person is in the country in valid F or J status or some other status, and if Baylor wants to pursue a change to H-1B, the person should not leave the U.S. during time the H-1B petition is pending. USCIS may consider departure from the U.S. as an abandonment of the request and the application will be denied.

Another potential pitfall in regards to the TN status is if a nonimmigrant enters the country in TN status and then files for a change of status to the H-1B within 60 days of entry, USCIS and DOS will apply the rule of "preconceived intent" that will result in denial of the H-1B status.

PROCESSING OF THE H-1B PETITION

Normal processing time for an H-1B petition with USCIS is currently 3 - 5 months. This does not include the work that must be done before USCIS is involved. USCIS will expedite processing of an H-1B petition for an additional fee of $1225.00. This is called "Premium Processing," and it does not guarantee a favorable decision, only a response with 15 business days after USCIS accepts the petition for processing.

It can take Baylor as much as 3 months to do all the work that must be done to assemble the petition---and that is only if everything goes well.

FAMILY MEMBERS ACCOMPANYING AN H1 NONIMMIGRANT (H4 status)

Out of country: Family members who are dependents of the H-1B nonimmigrant can usually be granted H4 status based solely on the H-1B nonimmigrant's paperwork at the embassy or consulate that issues the H-1B visa to the nonimmigrant.

In country: Family members who are dependents of the H-1B nonimmigrant can extend or change status by filing an I-539 and pay the appropriate fee, which is currently $290.00. This paperwork should be completed by the family, and the check and the form need to be provided to the Office of General Counsel to submit along with the H-1B petition.

REST OF THE RED TAPE

The H-1B petition is only part of the overall process. It can not only be complicated, confusing, rapidly changing but also unpredictable.

USCIS control the H1 process, it is a determination of legal status only--it may not be enough to ensure entry into the country. Note, the H-1B status is not the same as the H-1B visa stamp. Therefore, an H-1B status holder who was granted H-1B status within the U.S. will still need to obtain the H-1B visa upon the first trip outside of the U.S.

Entry into the country requires not only legal status but a visa. The visa is granted or denied by the Department of State (DOS), not USCIS, usually at a U.S. Embassy or Consulate General in the foreign national's home country. The embassies/consulates may have varying rules that require additional information before a visa is issued. In this regard, there is no practical way of keeping current on the requirements of each embassy/consulate. Consequently, the foreign national will need to be in contact with the embassy/consulate that will be used to obtain a visa.

For H-1B visa holders, an application for admission to the U.S. is then made at the U.S. port of entry (land border or airport) or preflight inspection station. The immigration officer has the authority to deny entry to a foreign national even though an H-1B visa has been issued. When entry is permitted, the USCIS processes an Arrival/Departure Record on Form I-94. This important document allows the foreign national to remain in the U.S. in the indicated nonimmigrant visa status up until the date specified on the card. The expiration date follows the phrase "valid until" and is evidence of the H-1B status holder's authorization to accept employment in the U.S. with the petitioning employer. In most cases, the I-94 document is surrendered upon an individual's exit from the U.S., and a new I-94 is issued upon re-entry.

Once in the U.S. and before working at Baylor, the foreign national will need to complete a Form I-9 and provide lawful documentation that proves the person's identity and authorization to work at Baylor. Of course, now that a U.S. employer will be paying a foreign national, yet another federal agency comes on scene--the Internal Revenue Service will now be interested in the taxation and withholding of taxes.

A FEW MATTERS TO REMEMBER:

• Even if the foreign national is here, authorized to work at Baylor, and is being paid, the compliance issues have not ended. Baylor may NOT materially change the foreign national's working conditions without informing USCIS of the changes. Therefore, any changes in employment should be discussed with the Office of General Counsel.

• NO GUARANTEES.