Step 1: UH job offer
UH may sponsor a prospective employee for H-1B employment after a job offer from a UH department has been accepted. That is, H-1B sponsorship may be initiated only if an employment agreement exists between a UH department and a foreign national. Once a job offer has been accepted, the department must determine whether the individual is eligible to work in the U.S. If the person does not already have employment authorization for the UH job, the proper authorization must be secured before employment can begin. The H-1B classification may be an option for work authorization if the initial eligibility requirements are met.
It is important to note that UH does not classify stipend or fellowship recipients (e.g., postdoctoral fellows) as employees. This means UH cannot seek H-1B classification for non-salaried appointments. Instead, the J-1 classification may be the most appropriate option.
Step 2: Determine H-1B eligibility
UH units may pursue H-1B sponsorship if the following minimum requirements are met:
- The position must be in a full-time “specialty occupation” that requires the theoretical and practical application of a body of highly specialized knowledge and at least a bachelor’s degree or foreign equivalent in the specific field; and
- The prospective employee must have the required educational degree or its equivalent in the specific field, experience, and other requirements for the position. For H-1B purposes, a bachelor’s degree equates to three years of progressively responsible experience for each year of formal education the individual lacks; a master’s degree’s equivalence is a bachelor’s degree plus five years of progressively responsible experience in the specialty. There is no equivalent for a doctorate.
Clinical positions: If the position involves direct patient contact that is not incidental to the duties and the employee is a graduate of a foreign medical school, these additional requirements must be met:
- Passage of one of these exams: Federation Licensing Examination (FLEX) parts I and II, National Board of Medical Examiners (NBME) Parts I, II, and III, or U.S. Medical Licensing Examination (USMLE), Steps 1, 2, and 3;
- Competency in oral and written English shown by passage of an English proficiency exam acceptable to the Educational Commission for Foreign Medical Graduates (ECFMG) (i.e., TOEFL);
- A full and unrestricted license to practice medicine in a foreign country or a degree from a medical school in a foreign country; and
- A license or other authorization required by the state in which the individual will practice or receive graduate medical education or training.
Exemption from H-1B cap
As an institution of higher education as defined in the Higher Education Act of 1965, section 101(a), 20 U.S.C. section 1001(a), UH is exempt from the annual H-1B “cap” or “quota” and may file H-1B petitions year-round.
Step 3: Prepare H-1B request
After the UH department determines that H-1B classification is appropriate, the H-1B request process may begin. All types of H-1B requests must be submitted to FSIS no later than two months prior to the requested H-1B start date. Submission of a late request may result in an H-1B beneficiary’s inability to start working on time or even the loss of legal immigration status in the U.S. Please note:
- USCIS must accept an H-1B petition by the business day on or before the employee’s current status end date.
- UH can request up to three years on each H-1B petition for a total of six years of H-1B status in the U.S. If the beneficiary is terminated for any reason prior to the H-1B end date, the college/school must pay the reasonable costs of return transportation to the last place of foreign residence.
- UH can submit a petition to USCIS up to six months prior to the intended H-1B start date.
- Consult with FSIS if the worker is:
- Planning to travel abroad while the H-1B petition is pending; or
- An F-1 student whose F-1 status will end more than 60 days prior to the intended H-1B start date; or
- A J-1 exchange visitor whose program will end more than 30 days prior to the intended H-1B start date; or
- Still subject to the two-year residence requirement after being in J-1 or J-2 status. UH cannot file an H-1B petition.
- Ask the H-1B worker about family members who may require an H-4 change of status or extension; if needed, include their documents in the H-1B request packet.
H-1B request process
UH colleges/schools/departments/units need to follow each step below to complete and submit H-1B requests to FSIS.
1. The UH sponsoring unit determines the “required wage.”
The required wage is the higher of the actual wage or the prevailing wage. UH colleges/schools are prohibited from paying H-1B employees less than this wage. FSIS cannot process an H-1B request if payment of the required wage cannot be verified.
To determine the actual wage, the college/school/department must complete the Actual Wage Calculation Form and the Actual Wage Statement. Both forms must be properly completed and submitted with the H-1B request to FSIS.
The prevailing wage is determined by the type of position the H-1B will hold.
- Faculty positions: The applicable minimum salary in the UHPA collective bargaining agreement (CBA) is the prevailing wage.
- APT positions: Step 1 of the applicable pay band on the APT salary schedule under the HGEA CBA is the prevailing wage.
- Non-union position: FSIS will calculate the prevailing wage using the position description matched against the occupation’s O*NET description. In rare cases, FSIS may need to obtain a prevailing wage determination (PWD) from the U.S. Department of Labor prior to completing the H-1B petition. This latter process can take 7-8 months, so departments need to factor in this time when deciding on an employment start date for an unusual non-union position.
2. The UH department initiates the H-1B request.
The UH department works with the H-1B beneficiary to obtain the necessary information and documentation for the H-1B request packet. The department completes/gathers its portion of the documents listed on the H-1B Request Form.
If any document is not written in English, provide a translation and a translator’s certification.
As part of the H-1B request packet, the H-1B employee’s direct supervisor must complete the UH Office of Export Controls’ I-129 Certification Decision Tree. After the supervisor answers the questions on the decision tree, print a hard copy of the resulting PDF form, complete items #1 and #2 on the form, and sign in the “PI/Supervisor” line. The dean or director of the college/school/unit must also sign the form. Attach the completed form as one of the supporting documents in the H-1B request packet.
3. The HR specialist reviews the H-1B request and attaches documents.
The UH department forwards its portion of the H-1B request packet to the HR specialist for the college/school/unit. The HR specialist reviews these documents and attaches any additional documents.
The HR specialist sends the complete request packet to an Immigration Specialist at FSIS.
The college/school/department (as appropriate) requests the filing fee checks, indicating that the checks be returned to the unit. The unit hand-delivers the checks and one of the following mailing materials to FSIS as soon as possible:
- Pre-paid FedEx mailing label;
- Pre-paid USPS Priority Mail Flat Rate mailing label; or
- Two bar codes for mailing USPS certified mail (Mānoa units only).
Step 4: FSIS processing
Once FSIS receives the request from the HR specialist, we will review it and complete the following as long as all initial requirements are met:
- Submit documents to the UH Office of Export Controls for export compliance review;
- For non-union positions, issue a prevailing wage determination (PWD) (in rare cases, a PWD request may need to be sent to the U.S. Department of Labor (DOL), which can take 7-8 months);
- For union positions, provide a notice of labor condition application (LCA) filing to the collective bargaining representative (union positions); for non-union positions, forward notices to the HR specialist to be publicly posted for 10 consecutive business days;
- Prepare and submit an LCA to the DOL (may take up to 10 days for approval);
- Prepare USCIS Form I-129 Petition for a Nonimmigrant Worker;
- Prepare a cover letter for the H-1B petition;
- Prepare USCIS Form I-907 Request for Premium Processing Service (if requested); and
- Review Form I-539/I-539A for any H-4 dependents (if applicable).
After receiving the filing fee checks and mailing label/bar codes, FSIS will mail the petition with the fees to USCIS. FSIS will file-drop a copy of the petition, which includes the certified LCA, to the HR specialist and to the employee.
Step 5: USCIS processing
Upon receiving the H-1B petition, USCIS will conduct an initial review to ensure the petition is being timely filed with the appropriate fee. If USCIS determines the petition has been properly filed, it will mail a receipt notice to FSIS, and we will email a copy of it to the HR specialist and employee. Please note the following regarding the different types of H-1B petitions:
|Petition type||UH employment||International travel|
|Change of H-1B employer||Under the H-1B portability rule, employment may begin on the requested start date as long as USCIS has issued a receipt notice.||See important information about traveling abroad while a petition is pending.|
|Concurrent H-1B employment||Under the H-1B portability rule, employment may begin on the requested start date as long as USCIS has issued a receipt notice.||See important information about traveling abroad while a petition is pending.|
|H-1B amendment||Under the H-1B portability rule, changes to employment may take place on the requested start date as long as USCIS has issued a receipt notice.||See important information about traveling abroad while a petition is pending.|
|H-1B change of status||H-1B employment may begin after USCIS approves the petition. Employment may begin prior to approval if the beneficiary has another type of valid work authorization.||See important information about traveling abroad while a petition is pending.|
|H-1B extension||Employment in the same position under the same terms may continue for up to 240 days after the prior authorization’s end date until USCIS renders a decision, provided the petition was timely filed.||See important information abouttraveling abroad while a petition is pending.|
Under regular processing, it generally takes USCIS 4-6 months to adjudicate petitions.
If premium processing service is requested, USCIS will act on the petition within 15 calendar days (“Act on” = approve, deny, request further evidence, or notify of intent to deny). USCIS offers this service for an additional fee, which may be paid only by the UH department.
While the petition is pending, departments can check its status using the receipt number and view average processing times on USCIS’s case status website.
If the petition is approved, USCIS will mail an H-1B approval notice (Form I-797A or I-797B Notice of Action) to FSIS. FSIS will send the following documents to the HR specialist for distribution:
- Memo to the employee;
- Original approval notice for the employee; and
- Contact Information Form (only for new employees), which the employee completes and return to FSIS after starting employment.
H-1B status automatically begins/continues upon the approval notice’s start date. The employee does not need to leave the U.S. and reenter to begin/continue H-1B employment unless a Form I-797B has been issued. If a Form I-797B is issued, the worker must follow the H-1B entry procedures to begin H-1B employment.
Cancellation of employment
If H-1B employment is cancelled for any reason, the HR specialist must notify an Immigration Specialist immediately so we can withdraw the LCA and the H-1B petition. If we are not timely notified, the department may be required to pay back wages plus interest to the beneficiary.
Step 6: Apply for H-1B entry
After the sponsoring unit sends the H-1B employee the approval notice and other documents, the employee needs to follow the steps below to apply for an H-1B visa and H-1B admission to the U.S.
1. Apply for an H-1B visa.
Canadian citizens can skip this step and proceed to “2. Apply for H-1B admission at a U.S. port of entry” below. Individuals who already have H-1B visas that will be valid on the date they arrive in the U.S. do not need to apply for new ones and may also proceed to “2. Apply for H-1B admission at a U.S. port of entry” below.
To apply for an H-1B visa, the employee needs to visit the U.S. Department of State’s U.S. embassies and consulates website to view the visa application requirements and to make an appointment for a visa interview. It is best to apply at the U.S. embassy/consulate having jurisdiction over the place of residence, though they may apply at any U.S. embassies/consulates worldwide that permit third country nationals’ applications. Anyone who was ever a visa overstay in the U.S. must apply for the visa at a consular office in their country of nationality.
H-1B visa application requirements differ by embassy/consulate, so the employee needs to check directly with the specific U.S. embassy/consulate on the requirements for the visa application if there are any questions.
Generally, all H-1B visa applications must include:
- DS-160 nonimmigrant visa application confirmation page;
- Visa interview appointment confirmation page;
- Proof of payment of visa fees;
- A passport style photograph that meets DOS‘s nonimmigrant visa photo requirements;
- Valid H-1B approval notice;
- Passport valid for at least six months beyond the approval notice’s end date;
- Employment confirmation letter from UH department; and
- Any other documents required by the specific U.S. embassy or consulate.
If the H-1B worker has any family members who will come to the U.S. as dependents, they need to follow the H-4 entry procedures.
2. Apply for H-1B admission at at U.S. port of entry.
Next, the employee applies for H-1B admission at a U.S. port of entry up to 10 days prior to the start date on the approval notice and bring the following items to the port of entry:
- Valid H-1B approval notice;
- Valid H-1B visa in passport (N/A for Canadians);
- Passport valid for at least six months beyond the approval notice’s end date (if the passport will expire before the approval notice end date, a shorter period of stay may be granted); and
- UH employment offer letter or employment certification letter from the UH department.
Also present H-4 admission documents for any accompanying family members.
Individuals are not guaranteed entry into the U.S. The U.S. Customs and Border Protection (CBP) officer at the port of entry will review all documents and ask the person about the purpose of the visit. These officers have the discretion to admit a person in H-1B status and any family members in H-4 status and may refer them to a more detailed secondary inspection.
When the H-1B employee is admitted into the U.S., all documents must be returned and an admission date stamp is placed in their passport with the notation “H-1B” (worker) or “H-4” (dependents) and a date indicating the period of authorized stay in the U.S. CBP will issue an electronic Form I-94 for each person to access and print at the CBP‘s I-94 website. The admission stamp with notations and the Form I-94 printout are proof of admission to and legal immigration status in the U.S.
H-1B employees and H-4 family members need to keep copies of their passport biodata/expiration pages, visas, admission stamps, and Form I-94 records permanently in case any of these documents are lost or stolen.
3. Send copies of entry documents to FSIS.
After the H-1B employee is admitted into the U.S., send an Immigration Specialist the following documents so we can update our records and check their admission:
- Completed Contact Information Form;
- Copy of Form I-94 printout from CBP‘s I-94 website;
- Copy of admission stamp with notations in passport;
- Copy of H-1B visa in passport;
- Copy of passport biodata page (if new/renewed); and
- Copies of the Form I-94 printout, visa, and passport biodata page for each H-4 dependent (if applicable).