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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 Frequently Asked Questions


Q1: What are some reasons a foreign national may not be eligible for H-1B classification?

Q2: Why can't an F-1 student qualify for the automatic cap-gap extension if he/she will be an H-1B employee at UH?

Q3: If an F-1 student has OPT STEM extension approval, why might a UH department need to file an H-1B petition rather than use the STEM extension EAD as proof of work authorization?

Q4: What is a prevailing wage? What is an actual wage? What is the required wage and why is there a wage requirement anyway?

Q5: Why is FSIS taking so long to complete the H-1B petition? It’s already been over a week.

Q6: Can an H-1B employee pay for any of the fees for his/her H-1B petition?

Q7: Can a UH hiring unit get reimbursed by an H-1B employee for his/her H-1B fees if the employee resigns before the end of his/her employment contract?

Q8: If an H-1B employee’s entry visa in his/her passport expired or is about to expire, does he/she need to leave the U.S. to apply for a new visa at a U.S. embassy or consulate in order to remain in valid H-1B status?

Q9: Can the H-1B employee of a different employer (not UH) receive an honorarium or reimbursements from a UH department?

Q10: Can an H-1B employee go on leave without pay?

Q11: Is there an automatic grace period at the end of H-1B status?

Q12: If an H-1B employee seems to have reached the 6-year maximum, is there any way for him/her to remain in the U.S. any longer?

Q13: Can an H-4 dependent work in the U.S.?

Q14: Can an H-4 dependent study in the U.S.?


Q1: What are some reasons a foreign national may not be eligible for H-1B classification? [top]

Reasons may include, but are not limited to:

  • The prospective hiring unit cannot pay the person the required wage (i.e. the higher of the prevailing wage and the actual wage).
  • The position offered does not require at least a bachelor’s degree as a minimum requirement.
  • The person does not have at least a bachelor’s degree or its equivalent.
  • The person has already been in the U.S. for 6 years in H-1B status and he/she has not spent at least 12 months outside the U.S. after the 6-year period ended.
  • The person is subject to the 212(e) 2-year home residence requirement stemming from J-1 status and has not yet fulfilled the requirement nor obtained a waiver of it.

Q2: Why can't an F-1 student qualify for the automatic cap-gap extension if he/she will be an H-1B employee at UH? [top]

F-1 students are only eligible for an automatic cap-gap extension if their H-1B employer is subject to the H-1B cap. As an institution of higher education, UH is exempt from the cap. Therefore, if a student's F-1 status end date will occur before UH's H-1B petition start date, he/she must depart the U.S. and be readmitted in H-1B status after the H-1B petition is approved.


Q3: If an F-1 student has OPT STEM extension approval, why might a UH department need to file an H-1B petition rather than use the STEM extension EAD as proof of work authorization? [top]

It's possible the hiring unit does not participate in E-Verify for STEM extensions. There are many UH departments that participate in E-Verify for federal contracts only, which does not necessarily mean an F-1 student with an OPT STEM extension may work for them using the STEM extension EAD. The department should check with its college/school's HR office to determine whether the particular college/school participates as an E-Verify participant for STEM extension hires. If not, then in most cases, the department will need H-1B or another type of qualifying work authorization to employ the person. See UH Administrative Procedure A9.685 for more details on the E-Verify program.


Q4: What is a prevailing wage? What is an actual wage? What is the required wage and why is there a wage requirement anyway? [top]

The prevailing wage is the average wage paid to similarly employed workers in a specific occupational classification in the area of intended employment, while the actual wage is the wage rate being paid to all other UH workers who are similarly employed and who have similar experience and qualifications to the prospective H-1B worker. The required wage is therefore the greater of the prevailing wage or the actual wage. This is the wage that must be paid to an H-1B employee.

An employer must pay the required wage to an H-1B worker to ensure that the employment of the H-1B worker is not adversely affecting the wages and working conditions of similarly employed U.S. workers. The required wage provisions are therefore in place to protect U.S. workers as well as the H-1B worker.


Q5: Why is FSIS taking so long to complete the H-1B petition? It’s already been over a week. [top]

Before we can complete an H-1B petition, we have to receive certification of a labor condition application (LCA) from the U.S. Department of Labor (DOL). DOL can take 7-10 days to certify the application. There is no way to expedite certification.

In addition to LCA certification, FSIS must now obtain clearance from the UH Export Compliance officer before we can release a completed petition for filing. The Export Compliance officer must discuss potential issues with the H-1B beneficiary's direct supervisor in order to recommend clearance. Due to conflicting schedules, this sometimes cannot be done right away.

Another common reason for a delay is that we have not received all of the required documentation and/or information in order to complete the H-1B petition.

Finally, we must prioritize our workload based on filing deadlines set by U.S. government agencies. Even if a hiring unit submits an H-1B request to us well in advance of the intended start date, we may need to set the request aside if another unit sends in a request that requires our immediate attention. We strongly urge units to submit their requests as early as possible so as to avoid situations that require last-minute action.


Q6: Can an H-1B employee pay for any of the fees for his/her H-1B petition? [top]

No. The UH hiring unit is required to pay all “costs connected to the performance of H-1B program functions which are required to be performed by the employer, e.g. preparation and filing of the LCA and H-1B petition.” (20 CFR 655.731(c)(9)(ii)). Therefore, as an institutional policy, UH hiring units must pay all H-1B-related fees, none of which may be passed on to an H-1B employee.


Q7: Can a UH hiring unit get reimbursed by an H-1B employee for his/her H-1B fees if the employee resigns before the end of his/her employment contract? [top]

No.


Q8: If an H-1B employee’s entry visa in his/her passport expired or is about to expire, does he/she need to leave the U.S. to apply for a new visa at a U.S. embassy or consulate in order to remain in valid H-1B status? [top]

No. An entry visa in a person’s passport is used solely for admission to the U.S. The visa in his/her passport has no bearing on his/her H-1B status while he/she is in the U.S. As long as the person has a valid H-1B approval notice and I-94 card, he/she can remain in the U.S.


Q9: Can the H-1B employee of a different employer (not UH) receive an honorarium or reimbursements from a UH department? [top]

It depends on the type of payment. Because H-1B classification is employer-specific, an H-1B holder who does not have an H-1B approval notice from UH may not receive a salary, honorarium, fee, or any other payment that might resemble compensation for services from UH. UH may, however, reimburse the H-1B holder for actual expenses incurred (e.g. airfare, lodging, transportation, etc.).


Q10: Can an H-1B employee go on leave without pay? [top]

Possibly, but it depends on the circumstances.

Even if an H-1B worker is not performing his/her duties, regulations may require that he/she still receive his/her full wages during that nonproductive period. (20 CFR 655.731(c)(7)). UH must continue paying full wages if the H-1B worker is not carrying out his/her duties due to:

  • A  decision by the employer (e.g. because of lack of assigned work)
  • Lack of a permit or license
  • Any other reason except as specified below

An H-1B worker can go on LWOP if:

  • During the LWOP period, payment of wages is not required under UH's benefit plan or any statutes (such as the Family and Medical Leave Act or the Americans with Disabilities Act) AND
  • Conditions unrelated to employment are what take the H-1B worker away from his/her duties AND
  • The LWOP period is at the worker’s voluntary request and convenience (e.g. touring the U.S., caring for ill relative) OR due to circumstances which render the worker unable to work (e.g. maternity leave, car accident which temporarily incapacitates him/her).

Q11: Is there an automatic grace period at the end of H-1B status? [top]

No. An H-1B beneficiary must leave the US by the last day of his/her H-1B status or risk accruing unlawful presence.


Q12: If an H-1B employee seems to have reached the 6-year maximum, is there any way for him/her to remain in the U.S. any longer? [top]

H-1B extensions beyond 6 years may be possible 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.

Another possibility is if an H-1B holder has spent a significant amount of time abroad during the H-1B approval period, he/she may be eligible to recapture that time abroad. This would be done via an H-1B petition filed by UH.

If the person has no other options for remaining in the U.S. (e.g. he/she cannot change to a different immigration status), the person should depart the U.S. or risk accruing unlawful presence.


Q13: Can an H-4 dependent work in the U.S.? [top]

Dependents of H-1B employees are not eligible for work authorization while they are in H-4 status. However, if an H-4 dependent applies for a job and receives an offer from a prospective employer, that employer may petition for the dependent’s own work-eligible status, such as H-1B. The dependent must change to the work-eligible status before he/she can begin working.


Q14: Can an H-4 dependent study in the U.S.? [top]

H-4 dependents may study in the U.S. on either a full or part time basis. However, the duration of their study depends on the H-1B holder’s period of stay. While H-4 dependents are not required to take a full course of study like F-1 students, H-4s are ineligible for F-1 benefits such as on-campus employment and practical training.



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