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The H-1B temporary worker visa is designated for individuals coming to the
U.S. to perform services in a specialty occupation which is defined as "an
occupation which requires theoretical and practical application of a body of
highly specialized knowledge, and attainment of a bachelor's or higher degree
for the specific specialization (or its equivalent in experience)." The hiring
department must provide documentation to prove that the job requires a person
with special qualifications and that the foreign scholar has those
qualifications. The BCIS makes the final determination on whether or not the
individual is qualified for the H-1B classification. [The International Office
files all H-1B petitions with the Bureau of Citizenship and Immigration
Services (BCIS) on behalf of Dartmouth College. Attorneys representing
individuals are not authorized to file H-1B petitions on behalf of the
College.] The U.S. limits the total number of new H-1B petitions issued each
year to private, for-profit companies, but institutions of higher education,
and non-profit organizations are currently exempt from this "cap".
H-1B visa holders are eligible for a total maximum stay of six years; an
initial visa may cover a period of up to three years. It may be extended
thereafter for a total of six years, regardless of the number of jobs held in
H-1B status. The six-year limit includes any time spent at another institution
or company, so it is important to plan accordingly. A new six-year period may
be begun only after the individual has spent at least one year outside
of the U.S.
H-1B Petition Process
- Determining the actual and the prevailing wage for the position
- Under the law, the Department of Labor is also involved in the process and
has become increasingly involved in the past year. Employers are required to
obtain a prevailing wage from one of three sources:
- The State Employment Security Agency (SESA) with jurisdiction over the
place of intended employment
- An independent authoritative source survey
- Another legitimate source of wage information
- Note that Dartmouth College obtains all prevailing wages from SESA as
it is the one authoritative source not subject to challenge by the Department
of Labor.
- Posting and filing the Labor Condition Application
- Employers are required to post a Labor Condition Application (Form ETA
9035) in two locations on campus: in the international office, and also in
either the alien's prospective department, or in the relevant Dean's office.
After ten days, the cover memo must be signed and it and the form must be
returned to the International Office. The original form is filed with the
Department of Labor. The LCA makes certain attestations concerning the
prevailing wage, working conditions, possible labor disputes and notice of
filing the of the position. The LCA also requires our office to make two
statements:
- That Dartmouth or the affiliated hospital will comply with the
terms of the LCA for the duration of the alien's authorized period of stay,
and
- That the department will be liable for the reasonable costs of
return transportation to the alien's home country if he/she is dismissed from
employment before the end of the period of authorized stay. These
regulations apply to initial and extension H-1B applications.
- Completing and filing the required BCIS forms and supporting documentation
- The International Office, with the cooperation of the requesting department
and international employee will file the necessary forms and
documentation.
Additional Information
Individuals already on a J-1 Exchange Visitor visa may not be eligible to
change to H-1B status. If the person is subject to the two-year home country
residency requirement, it bars the person from H-1B visa status until the
individual fulfills the requirement or obtains a waiver. Waivers, if possible,
can take up to a year to process.
The H-1B visa holder is subject to withholding of Social Security (FICA) tax
as well as federal and state income taxes. H-1B visa holders are taxed as
"resident aliens", on their worldwide income and may claim deductions for
family members. Dependents of an H-1B visa holder in H-4 status may not
accept employment under any circumstances.
Once the notice of approval is received, the individual may begin employment
as an H-1B1 temporary worker. If the individual is outside the U.S., he or she
may take the notice, and required supporting documents to the U.S. consulate in
the home country to apply for the H-1B1 visa. If they are in the U.S., no visa
application is necessary until he or she plans to travel outside the U.S. and
re-enter.
Please ensure that the necessary information forms are filled out completely
and accurately, and are submitted to the International Office with the
requested supporting documents. This will expedite the processing of the H-1B
petition, which can take a total of anywhere from one to two months to complete
and file and up to an additional three months or more for the BCIS to process
and adjudicate.
Filing fees:
On December 8, 2004, the President signed the H-1B Visa Reform Act of 2004
into law.
The H-1B Visa Reform Act of 2004 creates a new Fraud Prevention and
Detection fee of $500 which must be paid by employers seeking an initial grant
of H-1B status on behalf of an employee seeking a change of status to H-1B, or
seeking an initial entry to the U.S. as an H-1B worker. The new $500 fee
applies to any new petition filed on or after March 8, 2005. There are no
exemptions from the $500 Fraud Prevention and Detection Fee.
Any requests for H-1B petitions made to the International Office after
February 1, 2005, will need to pay the additional $500.00 fee. This must
be requested from Accounts Payable as a separate check, made out to U.S.
Citizenship and Immigration Services, along with the regular H-1B filing fee
check of $320.00. The checks should be forwarded to the International
Advisor assigned to the case (Hinman 6202), to be included with the H-1B
application.
If you wish to apply for "Premium Processing" of your H-1B petition, please
let us know. For an additional $1,000.00 fee, the BCIS will guarantee
adjudication of the petition within 15 days of receipt. This fee should be paid
by the department, not the international employee.
Please contact the International Office if
you have any questions about this process.
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