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H-1B Specialty Occupation
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Definition and Eligibility H-1B temporary workers are defined as persons who will perform services in specialty occupations on a temporary basis. The Immigration Act of 1990 defines specialty occupation as: "an occupation which requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation." To qualify as a "specialty occupation" the position must meet all of the following requirements:
The H-1B status can be used to bring temporary faculty members, researchers, consultants, administrators, or individuals engaged in a variety of professional-level activities to the United States . To qualify for H-1B status, the foreign national must possess the required degree or its equivalent or possess a certificate or license that permits the foreign national to immediately practice the profession in the state of intended employment. The H-1B is employer specific; the employee may only work for the employer who filed the H-1B petition and can only perform the job indicated in the petition. (Concurrent employment is possible if each employer has an approved H-1B petition.) H-1B status also requires that the employer pay the H-1B employee wages at a certain level, as prescribed by U.S. Department of Labor (DOL) regulations; certification of appropriate salary is done on the Labor Condition Application (LCA) by the DOL. An H-1B may be initially issued for a period of up to three (3) years. Extensions may be obtained, but the total period of authorized stay cannot exceed six (6) years, unless the individual has progressed through the requisite steps leading toward permanent residency. The H-1B petition may be filed up to six (6) months prior to the employment start date. An individual may enter the U.S. in H-1B non-immigrant status 10 days prior to the start date of the approved petition, but he/she may not begin work until the effective date of the petition. If the employer dismisses the foreign national prior to the expiration of the authorized stay, the employer is liable for the reasonable cost of return transportation for the foreign national abroad. The spouse and unmarried minor (under age 21) children of an H-1B worker are granted H-4 immigration status. Dependents in H-4 status are not eligible for employment but they may pursue coursework on a part- or full-time basis. back to top Procedures for Hiring H-1B Employees at MSM The OIPS office manager is currently the only agent authorized by MSM to file I-129 H-1B petitions on its behalf or to sign forms G-28 allowing representation by outside attorneys on its behalf relevant to H-1B cases (except for the office of Graduate Medical Education Administration, which handles H1B petitions for all MSM residents). H1B petitions require extensive documentary filing and retention requirements, and for this reason control over filing must be maintained by one centralized office. Morehouse School of Medicine requires that all staff positions be advertised internally. If a foreign national is selected to fill an advertised position and he/she and the position meet the criteria for H-1B, or an academic (faculty or non-faculty) appointment that meets H1B requirements is made, then the department should begin the H-1B process by filling out the H-1B request form and collecting the supporting documentation as indicated on the H-1B checklist (part of the H-1B request form), and then submitting the packet of materials to the OIPS. The department is advised to contact OIPS prior to submitting the packet to determine if the anticipated salary will meet minimum prevailing/actual wage rate requirements. In addition, the department should coordinate with the foreign national the gathering of supporting documentation for the H1B request form, as it is likely that the department will not have all the required documents in its files. Once submitted, the OIPS will review the packet of documents for completeness and contact the department or foreign national if additional information is required. Photocopies of original documents may be submitted, but original documents must be available for inspection by the U.S. Citizenship and Immigration Services (CIS) upon request of that agency. Any documents in a foreign language must be accompanied by an English translation. The translator must certify the accuracy and thoroughness of the translation and his or her competency in the language to be translated and English; this statement must be notarized. Credentials from less well-known foreign academic institutions should be evaluated for U.S. degree equivalency by a recognized credentials evaluation service. After receiving all requested documents, OIPS requires four weeks to file the H-1B petition with CIS. Once received by CIS, the change of status petition is normally processed in three to four months (extensions may run to six months), but unexpected delays can occur. For this reason, please allow at least five months for CIS processing before the official start date of employment. CIS has instituted a Premium Processing Service for which they will adjudicate a complete petition within 15 calendar days of receipt; the processing fee is $1,000 (separate check required). Employment cannot begin without final H-1B approval unless the individual is already in a valid status which allows employment at MSM, or the individual is currently in H-1B status and working for another employer, in which case employment can commence when the OIPS receives the official CIS receipt notice (proof that MSM’s H-1B petition for the individual has been received by the CIS and is pending). The H-1B approval is granted on CIS Form I-797: Notice of Action and a new Form I-94: Departure Record is issued. Persons outside of the country will typically have to apply for an H1B visa stamp at a U.S. consulate abroad once the petition has been approved, and will have to undergo security clearances. For faculty and non-faculty (postdoctoral fellow and research associate) academic appointments processed through the Dean’s office OIPS will submit the department’s documentation directly to that office for processing and eventual placement on payroll. For staff appointments, the department should follow the procedures established by the Dept. of Human Resources to ensure the timely scheduling of their prospective employee at a Human Resources new-hire orientation and their placement on MSM payroll. . back to top |