NONIMMIGRANT VISA CATEGORIES: H-1B, O-1, TN

H-1B Visa:

The H-1 B visa classification is a nonimmigrant visa used to sponsor a temporary worker in a specialty field. This is an employment-based petition.

H-1B Employment Qualification Requirements:

Position must require at least a bachelor’s degree in a specific field of study and the foreign national must have a relevant degree or equivalent experience.

  1. The degree requirement for the position is common to the industry or the position requirements is complex or unique that it can only be performed by an individual with a degree, or
  2. The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree.
  • The H-1B employee is only allowed to perform the duties that were requested during the petition process. Should there be changes in any of the terms of the position, an amended H-1B may be required.
  • The H-1B visa holder is only allowed to work at the location specified in the petition.
  • The H-1B visa holder is only allowed to work for the employer unto which the petition was issued for.
  • Foreign nationals subject to 212(e) two-year home residence requirements are not eligible for H-1B visa.
  • The employer is responsible for paying all filing and attorney fees associated with filing a petition to sponsor a foreign national on an H-1B visa.
  • The H-1B visa holder has 10 days before the validity period begins and 10 days after it ends to be in the United States.
  • The H-1B visa is initially granted for up to three years and may be extended to a maximum of six years.
  • Dual-intent visa which allows H-1B visa holders to enter the United States while simultaneously seek lawful permanent residency status at a port of entry.
  • 240 day rule applies for extensions.

Since the H-1B visa is employer specific, the foreign national will need to wait until the new employer files for a transfer before he or she can change jobs and start working.

  • The Host Department will need to pay all filing and attorney fees associated with the H-1B petition transfer request.
  • The Host Department may not charge the foreign national or request reimbursement for any of the fees required to be paid by the employer.  
  • If the H-1B transfer request is denied by DOL, employment is immediately terminated.

The O-1 visa classification is a nonimmigrant visa used to sponsor an individual who possesses “extraordinary ability” in specific categories. In most cases, seeking an O-1 visa is only recommended when H-1b is not applicable. This is an employment-based petition.

O-1 Employment Qualification Requirements:

  • O-1A: extraordinary ability in the sciences, education, business, and athletics.
  • O-1B: extraordinary ability in the arts or extraordinary achievement in performing arts such as motion picture or television industry.
  • Evidence that the beneficiary is recognized nationally or internationally as extraordinary in their academic field.
  • The petition must be supported by a recommendation in print from a “peer group” or a “person with proficiency” in the beneficiary’s field or an organization known for its expertise in the beneficiary’s field.
  • Details of the proposed work that the beneficiary will be doing.
  • Evidence of an employment contract between the employer and the beneficiary.
  • The O-1 is initially granted for up to 3 years.
  • The O-1 visa holder has 10 days before the validity period begins and 10 days after it ends to be un the United States.
  • The O-1 visa holder is only allowed to perform the duties that were requested during the petition process.
  • Subject to Consultation Requirement.
  • 240 day rule applies for extensions.
  • Spouse and unmarried children under 21 cannot work but may attend school.

 

O-1 Transfer Requirement:

The O-1 visa is employer specific. If the foreign national wants to change employers, the new employer must file a Form I-129 with the USCIS. If there are any major changes in the nature of the work environment, a new Form I-129 is required.

  • When professional athletes with O-1 nonimmigrant status are traded from one team to another, employment authorization will continue with the new team for 30 days during which time the new employer must file a new Form I-129.
  • If the new employer does not file a new Form I-129 within 30 days of the trade, the athlete loses his or her employment authorization. The athlete also loses his or her employment authorization if the new Form I-129 is denied.

TN:

The TN visa is a special nonimmigrant visa for qualifying citizens of Canada and Mexico. The TN visa offers expedited work authorizations to citizens from Canada and Mexico that meet the required qualifications established by the North American Free Trade Agreement ( NAFTA).

TN Employment Requirements:

  • The individual must have at least a bachelor's degree or appropriate credentials demonstrating status as a professional.
  • The individual possesses the requisite educational background and experience for that position.
  • The individual must be a citizen of Canada or Mexico.
  • The individual must have a prearranged job that is not self-employment.
  • The TN visa is initially granted for up to 3 years.
  • If you are Mexican citizen, once you are approved for a TN visa, you may apply for admission at certain CBP-designated U.S. ports of entry or at a designated pre-clearance/pre-flight inspection station.
  • There is no fixed limit on number of extensions.
  • USCIS may limit entry where nonimmigrant intent is questioned.
  • 240 day rule applies for extensions.
  • Spouse and unmarried children under 21 cannot work but may attend school.
  • If you are a Canadian citizen, you may establish eligibility for TN classification at the time you seek  admission to the United States by presenting required documentation to a U.S. Customs and Border Protection (CBP) officer at certain CBP-designated  U.S. ports of entry or at a designated pre-clearance/pre-flight inspection station.

What are some of the government filing fees my department should be prepared to pay in sponsoring someone for an H-1B?

The filing government filing fees are as follows, but may not be limited to:

I-129 Form (H-1B, O-1, TN): $460.00

Anti-Fraud Fee (H-1B): $500.00

Premium Processing Fee (H-1B, O-1, TN): $1,410.00

I want to hire someone who has an Optional Practical Training work authorization. Does that person need to wait until their H-1B is approved?

An individual with an OPT may begin employment prior to the approval of the H-1B petition if they posses a valid EAD issued by USCIS. If their H-1B is not approved by the time their OPT expires, the employee may no longer continue to work until their H-1B is approved. Employees without proper work authorization will be terminated in Workday.

What occupations qualify for an H-1B visa status?

Professional-level occupations in engineering, biological, physical, social science, mathematics and business administration generally qualify for an H-1B. A Bachelor’s degree is the minimum requirement, but it is also dependent on what the position requires. If the position requires a minimum of Master’s or Ph.D., those said degrees would be the minimum to qualify for H-1B status.

Is any foreign national with a bachelor’s degree eligible for an H-1B sponsorship?

No. To be eligible for H-1B sponsorship, you must meet the minimum education qualifications, meet the minimum experience, and have the appropriate licensure or certification, if applicable, to qualify for the position. In addition, your degree must also be specialized for the field in which you are applying to. For example, if someone has a bachelor’s degree in general studies, and is applying for an accounting position that requires a bachelor’s degree in accounting, that individual is not meeting the minimum educational requirements although they have a bachelor’s degree.

The applicant that my department is considering is under a J-1 visa status. Is the applicant eligible for H-1B status?

To be eligible for an H-1B, the applicant must meet the minimum qualifications for the position and must not be subject to the Two-year Home Country Physical Presence Requirement.   If they are subject to the Two-year Home Country Physical Presence Requirement under their J-1 visa, they are not eligible for an H-1b status until the requirement has been satisfied or waived by the USCIS.

I have an employee with a visa that is set to expire soon, what should I do?

In order to renew a visa, the request must be initiated at least 9 months prior to the expiration date.

How will I know if the H-1B extension was approved?

Once the H-1B visa extension is approved, the employer will receive a Notice of Approval.

I have an employee that is interested in applying for a green card and their nonimmigrant visa is scheduled to expire several months from now. Do we need to renew the nonimmigrant visa?

Yes. Although the employee is going through the process to obtain a green card, their nonimmigrant visa still needs to be renewed. The renewal should be initiated 9 months prior to the expiration date.

Workday does not show that the employee’s visa was renewed, what should I do?

Please have the employee visit Human Resources with their updated visa information. HR will make copies of their documents and update the employee’s HR record.

I have an employee that was on a visa and he is now a US Citizen, what should I do?

Please have the employee visit Human Resources with proof if their US Citizen status. HR will make copies of their documents and update the employee’s HR record.

I need to initiate a case, where should I begin?

The first thing you need to do is to get access to Fragomen’s Portal. If you do not have access, please email achowel1@fau.edu to request access. If you have access, you can proceed by entering the foreign national’s information, and information regarding the position.

You will also need to complete the Visa Applicant Export Control Questionnaire for Sponsored & Non-Sponsored Activities form. Submission instructions of this form can be found on the first page of the form.

If this is for an H-1B, you will also need to complete the Actual Wage Form and fill out a Wage Memorandum. Please have both documents signed.

We are hiring a teaching faculty, a research faculty (non-teaching), and a research position. What additional information do I need to submit?

Initiations for (teaching) faculty positions must include a courses sampling list which should include: (a) Course Number, (b) Course Title), and (3) Brief Course Description (2-3 sentences).

Initiations for (non-teaching) research faculty (Research Assistant Professor, etc.) should include at least one (1) Research Project title with a brief summary.

Initiations for research positions (Assistant Scientist, Associate Scientist, Post Doc Associate, etc.) should include (a) at least one (1) research project title with brief summary and (b) actual techniques or procedures to be executed as required by the research experiments.

What is a Department of Labor Prevailing Wage?

The prevailing wage is a rate defined as the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. The employer wage should not be less than the prevailing wage. If it is determined that the employer wage is less than the prevailing wage, the employer should raise the wage to meet the prevailing wage in order to continue with the visa petition.

My department is using the RUSH method and we were told that Fragomen will do an OES PWD. What does this mean?

To RUSH the case, Fragomen will do an OES (Occupational Employment Statistics) Prevailing Wage Determination. However, a Department of Labor Prevailing Wage Determination will still be conducted. The reason why the case can be rushed is because the OES PWD will be completed before the DOL PWD is received. Should the DOL PWD come back higher than the OES PWD, FAU will need to meet the DOL PWD retroactively (to point of Employee's actual start date at FAU) in order to continue the H-1B employment. Departments should keep this in mind when submitting a RUSH case with an OES PWD.

What is a Department of Labor Condition Application (LCA)?

The main purpose of the LCA is for employers to attest to the employment details of the H-1B visa applicants. This is a document that employers must file with the United States Department of Labor Employment and Training Administration (ETA) on behalf of employees applying for a nonimmigrant H-1B visa. If approved, the LCA is valid for up to three years of employment on an H-1B.

The DOL requires employers to maintain documentation supporting the following four main labor conditions have been met:

Wages and benefits:

The employer attests that H-1B nonimmigrants will be paid at the wage level that it is paying other individuals with similar experience and qualifications for the specific position or the prevailing wage level for the occupational classification in the area of intended employment. The employer further attests that H-1B nonimmigrants will be offered benefits or eligibility for benefits on the same basis, and in accordance with the same criteria, as offered to U.S. workers. [20 CFR 655.731].

Working conditions:

The employer attests that the employment of H-1B nonimmigrants in the named occupation will not adversely affect the working conditions of workers similarly employed. The employer further attests that H-1B nonimmigrants will be afforded working conditions on the same basis, and in accordance with the same criteria, as offered to similarly employed U.S. workers. [20 CFR 655.732]

Strike, lockout, or Work Stoppage:

The employer attests that on the date the Labor Condition Application is signed and submitted, there is not a strike, lockout, or work stoppage in the course of a labor dispute in the named occupation at the place of employment and that, if such a strike, lockout, or work stoppage occurs after the application is submitted, the employer will notify DOL ETA (Employment and Training Administration) within three (3) days of such occurrence and the application will not be used in support of a petition filing with USCIS for H-1B nonimmigrants to work in the same occupation at the place of employment until ETA determines the strike, lockout, or work stoppage has ceased. [20 CFR 655.733]

Notice:

The employer attests that as of the date of application, notice of the filing has been posted in two conspicuous locations in the area of intended employment, and a copy was also provided to the prospective worker(s) on whose behalf the application is filed. [20 CFR 655.734]

How long does it take for USCIS to process a case?

You may check the estimated processing time at https://egov.uscis.gov/processing-times/



 Last Modified 5/2/19