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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 Status Issues



H-1B duration

H-1B extensions

Changes to H-1B employment

Reporting changes of home address to USCIS

Dual intent

Travel abroad & reentry to the U.S.

Part-time H-1B employment



H-1B duration [top]

Generally, an individual can remain in the U.S. in H-1B status for a maximum of 6 years. UH may file extensions for eligible H-1B employees. Employees may not self-petition for H-1B status.

UH can file H-1B extensions for periods beyond 6 years in the following situations:

  • If 365 days have passed since a permanent labor certification application or an I-140 petition was filed on the employee’s behalf.
  • If the employee has an approved I-140 but cannot file an I-485 adjustment of status application because his/her priority date is not yet current.

If the employee reaches the end of the 6-year maximum in H-1B status and is not eligible for further extensions, he/she must depart the U.S. by the last day of H-1B authorization if he/she has no legal basis for remaining in the U.S. There is no grace period for H-1B status. In order to begin a new 6-year H-1B period, the individual must be physically absent from the U.S. for a total of 12 months.

Period of authorized stay

It is extremely important to be aware of the period of authorized stay on the employee's I-94 record or admission stamp. If the I-94/admission stamp expiration date will occur before his/her UH employment resignation date or H-1B approval notice end date AND if UH has not filed an H-1B extension with USCIS on his/her behalf, his/her H-1B status will end on the I-94/admission stamp date. As a result, the employee will be required to leave the U.S. on or before this date to avoid accruing unlawful presence.

See Terms and Concepts for information on the functions of the other immigration documents.

See End of H-1B Employment or Status at UH for information on completing an employee’s H-1B status or employment at UH.



H-1B extensions [top]

If the employee is eligible for an extension of H-1B status, the UH department should prepare their portion of an H-1B request to the Administrative/Personnel Officer (AO/PO). The AO/PO will review the documents, attach any necessary additional documents, and send the complete request to FSIS. FSIS will use the request documents to prepare the extension petition and return it to the department through the AO/PO for attachment of fee(s) and mailing to U.S. Citizenship and Immigration Services (USCIS.

Deadline to submit requests to FSIS

AOs/POs should submit H-1B extension requests to FSIS no later than 45 days prior to the current H-1B end date. USCIS must receive the properly filed H-1B extension petition by the business day on or before the  current H-1B end date. If USCIS receives the H-1B extension petition late, the employee will no longer be in valid status and will begin accruing unlawful presence.

Non-union positions

For UH positions that are not covered by a collective bargaining agreement, FSIS may need to obtain a prevailing wage determination (PWD) prior to completing the H-1B petition. PWDs can take up to 3 months to obtain, so departments should allow extra time for these types of H-1B requests.

H-4 dependents

Be sure to ask the employee if he/she has any family members who will require H-4 dependent status or extensions.

Petition duration & timing of filing

UH can request up to 3 year periods on H-1B requests, up to a total of 6 years in H-1B status. Departments may choose to request shorter durations per petition due to funding or contract periods. An employee may be eligible for 7+ years in H-1B status if his/her circumstances meet these requirements.

UH can submit H-1B petitions to USCIS up to 6 months prior to the current H-1B end date.

USCIS receipt

If an H-1B extension is properly filed with USCIS before the current H-1B end date, the employee may continue employment while the extension is pending for up to 240 days after the H-1B end date. The department may use a copy of the USCIS receipt notice to show employment eligibility during the 240-day period.

The employee may not reenter the U.S. from abroad during this 240-day period. If the extension is denied during the 240-day period, he/she must stop working immediately and should leave the U.S. if he/she has no legal basis to remain in the U.S.

Issuance of USCIS receipt notices is often delayed. The department should try to mail the petition at least 3 weeks prior to the current H-1B end date to ensure the extension receipt notice arrives in time. The USCIS receipt notice, rather than the courier’s delivery confirmation, should be used 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.

USCIS approval

H-1B status will automatically 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 continue his/her H-1B period.



Changes to H-1B employment [top]

H-1B approval is specific to the employer that filed the petition and covers only the particular position for which the petition was filed. 

New H-1B employer

If a UH employee accepts additional employment from another U.S. employer while he/she is employed by UH, the other employer must file an H-1B petition with USCIS to request concurrent H-1B approval for him/her. Likewise, if the employee is leaving UH to work for another U.S. employer, that employer must submit an H-1B petition to USCIS requesting a change of employer. In both cases, the employee cannot begin working for the other employer if he/she only has H-1B authorization for UH employment and if the other employer has not yet filed an H-1B petition on his/her behalf.

Changes to current UH employment

If substantial changes to the employee's current UH position occur, UH must file an amended petition with USCIS before the changes take place. The UH department should submit an H-1B request for an amended petition to FSIS through the AO/PO immediately if substantial changes in the terms and conditions of UH employment will take place. Some examples of substantial employment changes include:

  • Changing from full-time to part-time or vice versa (e.g. 50% FTE to 100% FTE)
  • Appointment to a position with a new title (e.g. Junior Researcher to Assistant Researcher)
  • Moving to or adding a new work site
  • Significant changes to your duties

Deadline to submit amendment requests to FSIS

AOs/POs should submit H-1B amendment requests to FSIS no later than 45 days prior to the effective date of the changes. Major changes to the terms of an H-1B employee's employment cannot take place until an H-1B amendment petition is filed and we have received the USCIS notice acknowledging receipt of the petition.

Non-union positions

For UH positions that are not covered by a collective bargaining agreement, FSIS may need to obtain a prevailing wage determination (PWD) prior to completing the H-1B petition. PWDs can take up to 3 months to obtain, so departments should allow extra time for these types of H-1B requests.

H-4 dependents

Be sure to ask the employee if he/she has any family members who will require H-4 dependent status or extensions.

Petition duration & timing of filing

UH can request up to 3 year periods on H-1B requests, up to a total of 6 years in H-1B status. Departments may choose to request shorter durations per petition due to funding or contract periods. An employee may be eligible for 7+ years in H-1B status if his/her circumstances meet these requirements.

UH can submit H-1B petitions to USCIS up to 6 months prior to the intended effective date of the changes.

USCIS receipt

If an H-1B amendment petition is properly filed with USCIS, the employee may begin employment under the new terms while the petition is pending and continue working until USCIS reaches a decision on the petition. The department may 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, so you and your department should be prepared to postpone the effective date of the changes to your employment if it becomes necessary. The USCIS receipt notice, rather than the courier’s delivery confirmation, should be used 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.

USCIS approval

H-1B status will automatically continue upon approval of the H-1B petition. The employee does not need to leave the U.S. to apply for an H-1B visa and reenter the U.S. to continue the H-1B period.



Reporting changes of home address to USCIS [top]

H-1B employees and their H-4 dependents are required to report all changes of residential address to USCIS within 10 days of moving. The easiest way to report any changes is through the USCIS online change of address form. If the H-1B employee or his/her H-4 dependents currently have an application pending at a USCIS Service Center, he/she/they should also contact the USCIS National Customer Service Center (toll-free number: 1-800-375-5283) to report the change of address.

Employees should also remember to notify FSIS about any changes of address.



Dual intent [top]

H-1B classification provides for dual intent. Unlike other nonimmigrant classifications (e.g. F-1, J-1), the filing of an immigrant petition or an approved permanent labor certification on the H-1B holder’s behalf cannot serve as a basis for a denial of entry to the U.S.



Travel abroad & reentry to the U.S. [top]

If an H-1B employee is planning to travel abroad, UH departments should issue him/her an employment confirmation letter to facilitate visa application and reentry to the U.S.
The employee should review the travel abroad and reentry procedures for more information.

NOTE: Most U.S. embassies and consulates no longer require the I-797 approval notice or a copy of the I-129 petition for visa interviews. However, the employee will need his/her petition receipt number from the approval notice to schedule an interview and to reenter the U.S. at a port of entry. See the U.S. Department of State website for more information on this topic.

Each time an H-1B employee reenters the U.S., UH departments should provide the following items to FSIS so we can update our files and check that he/she was properly admitted to the U.S.:

  1. Top portion of the original H-1B approval notice (if borrowed)
  2. Copy of both sides of the new I-94 card or I-94 printout from CBP's I-94 website
  3. Copy of admission stamp with notations in passport
  4. Copy of H visa in passport (if obtained)
  5. Copy of passport biodata/expiration page (if new)
  6. Copies of #2-5 above for each H-4 dependent (if applicable)

Traveling abroad while an H-1B extension is pending

An H-1B employee must be physically present in the U.S. at the time an extension of stay is filed, but he/she may travel abroad while the extension is pending. However, if he/she leaves the U.S. while the extension is pending, it is very important to consider the following:

  • If the prior H-1B approval notice will expire before the employee plans to reenter the U.S., he/she must remain abroad until the extension approval notice can be mailed to him/her by the UH department. The employee will need the extension approval notice for H-1B visa application (if applicable) and reentry to the U.S.
  • If the prior H-1B approval notice will still be valid when the employee plans to reenter the U.S., and if the H-1B extension is not yet approved, he/she can apply for an H-1B visa (if necessary) and reenter using the prior approval notice. However, if the extension is approved just before he/she reenters the U.S. with the prior approval notice, his/her reentry with the prior approval, which may be considered the “last action” on his/her H-1B status, may have the effect of invalidating the extension. The result may be that he/she will need to leave the U.S. and reenter with the extension approval notice OR the UH department will need to immediately file an identical extension petition with USCIS.


Traveling abroad while a change of status to H-1B is pending

If a UH department has sent a petition for a change of status to H-1B to USCIS, the H-1B beneficiary should not leave the U.S. until the petition is approved by USCIS. If he/she leaves the U.S. while the change of status is pending with USCIS, he/she will abandon the change of status. If he/she will need to travel abroad while the petition is pending, the UH department should notify FSIS BEFORE the petition is sent to USCIS.

 


Part-time H-1B employment [top]

Part-time H-1B employees must keep a written record detailing the number of hours worked each day and each week, regardless of whether they are being paid a salary or an hourly wage [20 CFR 655.731(b)(1)(v)]. An H-1B employee with a part-time appointment may not work more than the number of hours per week stated on the H-1B petition. Additionally, he/she must complete time sheets stating the hours worked every day. The hiring unit should collect the completed time sheets from the part-time H-1B employee and keep the time sheets in his/her personnel file for at least 3 years from the date the time sheets were created [20 CFR 655.760(c)].

 

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