Center for International Studies
Guidelines for Hiring International Foreign Employees
1. Information and Processing Procedures
The H-1B temporary worker non-immigrant classification may be granted to a foreign national who will perform services/work on a temporary basis in specialty occupations, defined as those positions requiring:
- Theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation in such fields of human endeavor as architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts; and
- A bachelor’s or a higher degree in the specific specialty as a minimum entry into the occupation in the United States.
H-1B status may be granted by USCIS in increments of three years or less, depending on the length of employment authorization requested by the department. H-1B applications should not be requested for a period longer than can be guaranteed by funding availability.
The maximum time permitted in H-1B status is six years, which is reduced by any prior periods of stay in any H or L classification (including H-4 dependent status). Previous periods in H or L status are not counted toward the six-year maximum if the individual was outside of the U.S. for at least twelve (12) months following the time spent in H or L status.
An appropriate entry visa is needed when a foreign national, except Canadian citizens, enters or reenters the U.S. If an H-1B applicant is outside the U.S., he/she will need time to apply for an H-1B visa at a U.S. consulate in order to enter the U.S. Having approval of H-1B status from USCIS does not guarantee issuance of an H-1B visa by a U.S. consulate. The H-1B approval notice (I-797) is not a visa, nor may it be used in place of an H-1B visa to enter/reenter the U.S. H-1B employees are eligible to enter the U.S. 10 days prior to the employment start date.
In the case of H-1B extensions of the same position, the individual may continue his/her employment up to 240 days if an extension request was submitted to USCIS prior to the end of the previous H-1B period. This 240-day rule only applies to the scholar residing in the U.S.
H-1Bs are approved for a specific job at a specific employer at a specific location. Any changes require prior consultation with the Center for International Studies (CIS), in Seal Hall 212, and possibly an approval by USCIS. H-1B employees are not allowed to receive honorarium.
Positions used in the H-1B process must be paid or salaried, and must meet WIU “actual” wage and Department of Labor (DOL) “prevailing” wage regulations as guaranteed by a certified Labor Condition Application (LCA).
RETURN TRANSPORTATION: Please note that departments are responsible for the reasonable costs of return transportation of the foreign national abroad (last place of foreign residence) if he/she is dismissed from employment before the end of the authorized H-1B period for any reason.
Please advise the H-1B employee and his/her family members to consult with CIS prior to traveling outside the U.S. as immigration regulations change constantly.
Only spouses and children under 21 may accompany the foreign national in the dependent H-4 status. H-4 dependents may not work under any circumstances.
Persons who are or have been in J-1 or J-2 status and are subject to the “Two Year Home Country Physical Presence Requirement” are not eligible for H-1B until the requirement is fulfilled or a waiver is obtained.
Effective July 31, 2001, INS/USCIS implemented a Premium Processing Service to obtain faster processing of an H-1B petition. USCIS will provide a 15-calendar day processing time to those who choose to use this service. This does not guarantee an approval. This fee is in addition to the filing fees. Please contact CIS for further details.
Current processing time with USCIS-California service center is 90-120 days. Please take this into consideration – you may need to pay the extra $1,000 premium processing fee in order to have the H-1B petition approved in time for your employee to begin working by their contract start date.
2. H-1B Application Process
All H-1B applications, including amendments, extensions, concurrent employments, etc., require three steps.
Total processing time for an H-1B petition currently averages between 3 1/2 to 4 months; approximately 14 working days to obtain a prevailing wage determination from the Illinois Department of Employment Security (IDES) if required.
Step 1: IDES must certify the “prevailing wage” in the field for the type of position. The H-1B employee must be paid at or above the IDES prevailing wage determination. Step 1 can be substituted by a collective bargaining agreement, if the position is covered under that agreement.
Step 2: DOL must certify an LCA submitted by WIU. WIU attests to the terms and conditions of employment and agrees to abide by the labor conditions listed on the LCA.
Step 3: USCIS Regional Service Center in Laguna Niguel, California must approve the H-1B petition (I-129). Because WIU as employer is the petitioner, WIU signs the legal forms for DOL and USCIS. The individual seeking H-1B status does not sign any forms for the H-1B process, nor may an outside attorney prepare them.
3. The Role of CIS
Upon receiving an H-1B request, CIS will determine that actual wage requirements are being met based on information provided on the Actual Wage worksheet completed by the hiring department.
When the position is not covered by union contract, CIS will submit a prevailing wage determination to IDES. It will take approximately 14 working days for IDES to provide a determination.
Once the prevailing wage determination is returned, CIS will ensure that DOL prevailing wage regulations are being met. If the department is offering a salary lower than the prevailing wage, CIS will contact the department’s administrative contact person to discuss options. Please note that prevailing wages change yearly, and it may be necessary to increase the H-1B worker’s wage at the time of an extension.
Once the LCA is certified, CIS will prepare an I-129 petition and supporting documentation; obtain appropriate signatures from the Provost Office; and send the entire petition to USCIS.
CIS will receive the original H-1B approval notice (I-797) form USCIS, at which time the department and the employee will immediately be notified of any action needed. H-4 approval notices for dependents will be sent directly to the address listed on Form I-539 (completed by the dependents).