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News:

FSIS website under construction
Starting September 20, 2013, we'll be making changes to the format of our website. We ask for your patience as this may be a lengthy process. Contact Signe at signen@hawaii.edu if you have problems with website functionality or navigation.

New I-94 procedure
From April 30, 2013, U.S. Customs and Border Protection (CBP) will begin implementing a paperless I-94 procedure at U.S. air and sea ports of entry.

EB immigrant visa availability
U.S. Department of State's monthly Visa Bulletin


H-1B Requests & USCIS Processing



STEP 1: Preparing the H-1B request

STEP 2: Completion of the H-1B petition

STEP 3: Fees & mailing to USCIS

STEP 4: USCIS receipt & processing time

STEP 5: USCIS approval



STEP 1: Preparing the H-1B request [top]

UH departments should submit H-1B requests to FSIS through the Administrative/Personnel Officers (AO/PO) for their colleges/schools no later than 45 days prior to the requested H-1B start date. Submitting a late request may result in an H-1B beneficiary being unable to start employment on time or losing his/her legal immigration status in the U.S.

FIRST, the UH college/school/department must ensure it will pay the H-1B employee the required wage (i.e. the actual wage or the prevailing wage, whichever is higher). UH colleges/schools are prohibited from paying H-1B employees less than the required wage.

  • Actual wage: The actual wage is the salary or range of salaries being paid to all other individuals whose duties, experience and qualifications are similar to the H-1B employee's duties, experience and qualifications. To determine the actual wage, the college/school/department must complete the Actual Wage Calculation Form. This form, along with a completed Actual Wage Statement, must be sent with the H-1B request to FSIS.
  • Prevailing wage: The prevailing wage is the rate being paid in a given geographic area in the same occupation.
    • Faculty positions: Since the UHPA collective bargaining agreement now contains minimum salary amounts, FSIS can rely upon the CBA as the prevailing wage source.
    • APT positions: Since APT salaries are determined by a salary schedule, FSIS can rely upon the HGEA collective bargaining agreement as the prevailing wage source.
    • Non-union positions: FSIS must obtain a prevailing wage determination from the U.S. Department of Labor National Prevailing Wage Center, which can take up to 2 months.

SECOND, the UH department should work with the employee to complete/gather the following documents for the H-1B request, which should be submitted to FSIS:

THIRD, the department should forward the entire packet to the college/school/unit’s AO/PO/HR Specialist.

FOURTH, the AO/PO/HR Specialist should review the request, attach any necessary documents, and send the complete request to FSIS, Attn: Signe/Isis, PSB 102-106. FSIS will review the request and may require additional/revised documentation.

IMPORTANT:

  • UH can submit a petition to USCIS up to 6 months prior to the requested H-1B start date.
  • H-1B extensions, changes of status, changes of employment, and changes of employer must be received by USCIS no later than the business day on or before the employee’s current status end date. If USCIS receives these types of H-1B petitions late, the person will no longer be in valid status and may need to leave the U.S. immediately.
  • Changes of status to H-1B: If an employee travels abroad while his/her change of status petition is pending with USCIS, he/she will abandon the change of status. Therefore, UH should either file the petition after he/she returns to the U.S. OR file the petition early enough to obtain approval before he/she leaves the U.S.
  • The department should ask the H-1B employee whether any family members will require an H-4 change of status or extension.
  • UH can request up to 3-year periods on H-1B petitions. If involuntary termination occurs prior to the H-1B authorization end date, the department will be responsible for paying the reasonable costs of return transportation to the person’s last place of foreign residence.
  • AOs/POs should consult with FSIS if any of the following situations apply:
    • The foreign national is currently in F-1 status with a graduation date or F-1 status/OPT end date that will occur more than 60 days prior to the intended H-1B start date.
    • The foreign national is currently in J-1 status with a program end date that will occur more than 30 days prior to the intended H-1B start date.
    • The foreign national and/or his/her dependents currently are or previously were in J-1 or J-2 status, subject to the 2-year foreign residence requirement.
    • The foreign national was previously in H-1B status and has not been outside the U.S. for at least one year after holding that status.



STEP 2: Completion of the H-1B petition [top]

Once FSIS receives the request from the AO/PO, we will send an export compliance review request to the UH Export Compliance Officer. The Export Compliance Officer will contact the PI/supervisor directly for more information about the beneficary's duties and potential exposure to certain technology/technical data in order to issue export compliance certification.

After receiving a favorable recommendation from the UH Export Compliance Officer, FSIS will prepare/obtain the following documents:

  • Obtain a prevailing wage determination (non-union positions)
  • Forward labor condition application posting notices to the AO/PO (non-union positions)
  • Notice of filing to the appropriate collective bargaining representative (union positions)
  • Form ETA 9035 Labor Condition Application
  • USCIS Form I-129, Petition for a Nonimmigrant Worker & H Supplements
  • Form I-907 Request for Premium Processing Service (if applicable)
  • Revised Form I-539 (if applicable)

FSIS will send the completed H-1B petition to the AO/PO along with a memo regarding the current applicable fee amounts and proper USCIS mailing addresses.



STEP 3: Fees & mailing to USCIS [top]

The H-1B employee is prohibited from paying any of the fees associated with filing the H-1B petition. The UH college/school/unit/department is responsible for paying all H-1B-related fees (excluding the Form I-539 filing fee for H-4 dependents) and for mailing the petition to USCIS.

USCIS Fees

USCIS Mailing Addresses



STEP 4: USCIS receipt & processing time [top]

USCIS receipt

After the UH department mails the H-1B petition to USCIS, USCIS will mail a receipt notice to FSIS to show the H-1B petition has been properly and timely filed.

Petitions for changes of status to H-1B: If a petition for a change of status to H-1B from another nonimmigrant status (e.g. F-1, J-1) has been mailed to USCIS, the employee should not leave the U.S. until USCIS approves the petition. If he/she leaves the U.S. while the petition is pending with USCIS, he/she will abandon the change of status. If he/she has plans to travel abroad while the petition is pending, the UH department should notify FSIS BEFORE the petition is sent to USCIS.

Petitions for H-1B extension, change of employment, change of  H-1B employer, or concurrent H-1B employment: The employee may begin/continue UH employment from the requested start date once FSIS receives the USCIS receipt notice. Departments can use a copy of the USCIS receipt notice to show employment eligibility while the petition is pending.

  • Issuance of USCIS receipt notices is often delayed. To ensure the receipt notice arrives in time to begin/continue UH employment, departments should allow enough time to mail H-1B petitions to USCIS at least 3 weeks prior to the intended start date.
  • Departments should use the USCIS receipt notice, rather than the courier’s delivery confirmation, to show employment eligibility. Even if delivery was timely, USCIS may later reject the petition. Rejected petitions are not considered “filed” with USCIS.

USCIS processing time

  • Regular Processing: Normally takes 2-4 months on average.
  • Premium Processing: USCIS will act on the petition (i.e. approval, denial, or a request for more evidence) within 15 calendar days of receipt. This service is available for an additional fee, which must be paid by the UH college/school/unit/department.

See the USCIS Case Status Service website to check the status of pending petitions and to see average processing times.



STEP 5: USCIS approval [top]

Once the petition is approved, USCIS will send an H-1B approval notice (Form I-797A Notice of Action) to FSIS. FSIS will transmit the following documents to the AO/PO:

  • Memo to the employee (the information provided in this memo will differ depending on the type of petition that was filed on the employee’s behalf)
  • Bottom portion of original H-1B approval notice: This should be given to the employee, who should keep the bottom portion of the notice in his/her passport. The original top portion of the notice, which is the employer's copy, will generally be kept in FSIS files.
  • H-1B employee’s copy of the certified Labor Condition Application: UH is required to provide a copy of this document to the employee.
  • H-1B General Information handout (given to new UH H-1B employees)
  • Contact Information Form (given to new UH H-1B employees)

Petitions for entry from abroad: The employee must enter the U.S. from abroad in order to begin the H-1B period.

  • The H-1B employee should review the H-1B entry procedures for more information on visa application and entry procedures.
  • After the employee arrives in the U.S., UH departments should send the following documents to FSIS so we can update our files and check that the employee was properly admitted to the U.S.:
    1. Completed Contact Information Form
    2. Top portion of the original H-1B approval notice (if borrowed)
    3. Copy of both sides of the new I-94 card or I-94 printout from CBP's I-94 website
    4. Copy of admission stamp with notations in passport
    5. Copy of H visa in passport (if obtained)
    6. Copy of passport biodata/expiration page (if new)
    7. Copies of #3-6 above for each H-4 dependent (if applicable)

Petitions for change of status, H-1B extension, amendment, change of employer, or concurrent employment: H-1B status will automatically begin/continue upon the H-1B approval notice start date. The employee does not need to leave the U.S. to apply for an H-1B visa and reenter the U.S. to begin/continue his/her H-1B period.

If the employee will not begin employment at UH for any reason, the department must inform FSIS immediately so we can notify USCIS.


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