H-1B Temporary Employment Visa

The H-1B program applies to employers seeking to hire non-immigrant aliens as workers in specialty occupations or as fashion models of distinguished merit and ability. A specialty occupation is one that requires the application of a body of highly specialized knowledge and the attainment of at least a bachelor’s degree or its equivalent. The intent of the H-1B provisions is to help employers who cannot otherwise obtain needed business skills and abilities from the U.S. workforce by authorizing the temporary employment of qualified individuals who are not otherwise authorized to work in the United States.

The law establishes certain standards in order to protect similarly employed U.S. workers from being adversely affected by the employment of the non-immigrant workers, as well as to protect the H-1B non-immigrant workers. Employers must attest to the Department of Labor that they will pay wages to the H-1B non-immigrant workers that are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or the prevailing wage for the occupation in the area of intended employment – whichever is greater.

NJIT will only sponsor H-1B visas for Full-time salaried positions that will be sponsored for a minimum of one calendar year. 

For faculty positions, approval for H-1B must be obtained from the chair or dean of the department.

For staff sponsorship requests for H-1B petitions, approval must be obtained from the chairperson, dean or director of the department. 

Eligibility:

In order to apply for H-1 B status, the following requirements must be met:

1. There must be an employer-employee relationship with NJIT;
2. The job must qualify as a specialty occupation by meeting one of the following criteria:
   1. A bachelor's degree or higher or its equivalent is normally the minimum requirement for the particular position;
   2. The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor's degree in a field related to the position;
   3. NJIT normally requires a degree or its equivalent for the position; or
   4. 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.
3. The job must be in a specialty occupation related to the employee's field of study;
4. The employee must be paid at least the actual or prevailing wage for the job, whichever is higher.

For more information please refer to the link:  https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations

Please note that the H-1B status is employer and job specific. Any changes to the conditions of the H-1B beneficiary’s employment, including title, worksite location, job duties and salary, must be reported to OGI prior to the change taking place.  Any unauthorized changes may constitute a violation of the H-1B beneficiary’s immigration status.   

 212(e) 2-Year Home Residency Requirement

• If the Foreign National was previously in the United States in J status, they may be subject to the 212(e) 2-year Home Residency Requirement. 

• If the Foreign National has not fulfilled the 2-year Home Residency Requirement or received a waiver approval from USCIS, they will not be eligible for H-1B sponsorship. 

 Minimum Length of H-1B Sponsorship: 1 Year

•  H-1B sponsorship must be for at least 1 calendar year.  

 Maximum Length of H-1B Employment : 6 Years

• Employers can sponsor Foreign Nationals for H-1B status in 1 to 3 year increments for a maximum period of 6 years.

• Time previously spent in the U.S. in H-1B or L-1 status counts against the allowable 6-year maximum. 

• H-1B employees who have reached the 6-year maximum must reside outside the U.S. for at least 12 months before they can once again apply for H-1B status.

Grace Period

Foreign nationals arriving in the U.S. on an initial H-1B approval can arrive no more than 10 days prior to the start date of their employment. This time is given to procure housing and basic necessities. USCIS may also grant the foreign national a 10-day grace period at the end of their employment validity period to prepare for their departure. Be aware that no employment should be conducted during either grace period.

If a department is interested in sponsoring a foreign national for H-1B status, the department must first get approval from the Dean/Area Vice-President/Provost, as applicable, then email the Office of Global Initiatives stating their intent to cover the legal and processing fees associated with filing a H-1B petition. The Office of Global Initiatives will then send questionnaires that the department and the foreign national must complete and return to the Office of Global Initiatives. These questionnaires will be used by immigration counsel selected by the Vice President of Human Resources with the authorization of the General Counsel and Vice President for Legal Affairs to draft the H-1B petition. The Office of Global Initiatives will also send an invoice from the attorneys to the department, and the department must transfer the funds directly into the Department of Human Resources’ account/index number. Once the petition is drafted it will be sent to the United States Citizenship and Immigration Services (USCIS)

Departments sponsoring H-1B employees must confirm they will pay all fees detailed below:

• H-1B Filing Fee - $460.00

• Anti-fraud Fee (for initial H-1B petitions) - $500.00

• Premium Processing (if necessary) - $2,500.00

• Legal fees - To be determined by H-1B processing team

Fees regarding H-4 dependents and visa processing can be paid by the employee.

For initial H-1B petitions there are two options on how one can receive their H-1B status: 

Consular Processing 

• If the Foreign National is not in the U.S. at the time OGI submits the H-1B petition to USCIS, the petition will be processed as a request for Consular Notification. This means that the H-1B petition will first need to be approved by USCIS. Then, once USCIS approves the H-1B petition and the Foreign National receives the I-797 Approval Notice, the Foreign National will then need to apply for an H-1B visa at a consular post outside of the U.S. (Please note that Canadian citizens are visa exempt. They only need to present the I-797 Approval Notice upon entry to the U.S.) 

• Individuals who have received a Consular Petition approval and obtained their H-1B visa are permitted to enter the United States up to 10 days prior to the H-1B validity start date, which is indicated on the I-797 Approval Notice. Once in the U.S., the foreign national must be placed on NJIT payroll within 30 calendar days. 

Change of Status 

• Foreign Nationals who are currently in the U.S in a different non-immigrant status* may wish to accept employment at NJIT and be sponsored for H-1B status. This would require a petition to USCIS for a Change of Status. *NJIT does not file Change of Status requests from B visitor status to H-1B. 

• The internal process at NJIT for requesting a Change of Status to H-1B is the same as other H-1B requests. However, additional supporting documentation may be required from the Foreign National to demonstrate that they will maintain valid immigration status until their start date at NJIT. 

• The petition for a Change of Status must be submitted to USCIS prior to the current status end date. Employment in the new position may not commence until an I-797 Approval Notice is received by OGI from USCIS. In general, beneficiaries must maintain their non-immigrant status until the start date at NJIT.    

• Foreign Nationals who have been in the U.S. in J status and who are subject to the two-year home residency requirement (INA 212(e)) are ineligible for H-1B status, unless the 212(e) requirement has been fulfilled or a waiver of the requirement has been approved by USCIS.

For current H-1B visa holders who would like to extend, transfer, or amend their current H-1B status: 

Extensions 

Applications for an extension of H-1B status must be filed with USCIS prior to the expiration of the Foreign National's current H-1B status. Employers may file for extensions as early as 6 months prior to the expiration of the current H-1B status. Failure to file the application for extension prior to the expiration date of the current H-1B approval constitutes a violation of the H-1B employee's nonimmigrant status. H-1B employees for whom an extension has been filed with USCIS in a timely manner may continue their employment with the same employer for a period of up to 240 days while the application is pending with USCIS, provided our office has received written notification from USCIS indicating that the application has been received. 

Transfers/H-1B Portability 

Individuals currently in the U.S. in H-1B status may choose to change employers. This is known as a “transfer” of status or H-1B portability. A transfer of H-1B status to a new employer requires that the new employer file an H-1B petition with USCIS on behalf of the prospective employee. NJIT hiring units and prospective H-1B employees should keep the following in mind when considering a transfer to NJIT: 

• The H-1B employee is allowed to begin his/her employment with NJIT once (1) OGI has filed the H-1B petition and received a receipt notice from USCIS and (2) the requested start date of employment at NJIT has arrived. It is not necessary to wait for the petition to be approved for the Foreign National to begin his/her employment at NJIT. The employment with the new employer may continue if USCIS has not denied the petition. 

• Time spent in H-1B status with another employer counts towards the 6-year maximum allowed in H-1B status. H-1B employees can become eligible for another 6 years of H-1B status once they spend a minimum of 12 months outside the U.S. 

• The H-1B beneficiary should not give notice of resignation to his/her current employer until NJIT has filed its H-1B petition. H-1B beneficiaries are expected to maintain their H-1B status throughout the transfer process. If there is a gap between the beneficiary’s last day of employment at his/her current employer and start date at NJIT, USCIS may find that the beneficiary has violated his/her immigration status. NJIT hiring units are advised to work closely with OGI to ensure that there is no gap in the foreign national’s employment. 

Amendments 

Each H-1B approval is job title, job duty, and location-specific. NJIT hiring units must contact OGI if they anticipate any changes to an H-1B employee’s job title, job duties, or worksite location. In most cases, any of these changes will require the filing of an amended H-1B petition before the change can take place.

1. Generally, the total period of H-1B authorization may not exceed 6 years. This includes time previously spent in H-1B or L-1 status. Petitions for H-1B status may be submitted for up to 3 years at a time.
2. The H-1B status is employer, job title, salary, work location, and job description specific. You must notify OGI in advance of any changes to your job title, duties, work location, or salary (aside from scheduled increases). You may not accept employment with a different unit or change job title or responsibilities at NJIT before we file an amended H-1B application with USCIS.   
3. Generally, there is a 10-day grace period granted at the end of one's H-1B status. During the grace period, the H-1B employee may legally stay in the U.S. but no employment is permitted. However, if employment is terminated early, there is no grace period.  
4. An H-1B employee must notify OGI immediately of any intent to terminate his/her employment with NJIT before the expiration date of the approved H-1B petition.
5. In the event that the employment is terminated by NJIT prior to the expiration date of the H-1B approval notice, the hiring unit is responsible for covering reasonable travel expenses for the employee’s return to his/her last country of legal residence. The hiring unit is not responsible for travel expenses if the employee voluntarily resigns.  
6. H-1B extension petitions must be filed with USCIS prior to the expiration of the current H-1B approval. They can be submitted 6 months before the current H-1B expiration date.  The hiring unit must initiate H-1B extension requests with OGI at least 2 months before the current H-1B expiration date.
7. All H-1B employees must maintain passports that are valid for at least 6 months beyond their H-1B expiration date.
8. H-1B employees must report changes of address to USCIS within 10 days of moving by completing and submitting the Form AR-11 to USCIS, which can be found at http://www.uscis.gov.
9. Spouses and unmarried children (under the age of 21) of H-1B employees are eligible for H-4 dependent status.  H-4 children who turn to 21, or who marry, are no longer eligible for H-4 status. H-4 dependents may legally study in the U.S., but are generally not authorized for employment in the U.S. (with some exceptions).  
10. H-4 dependents' immigration status is contingent on the continued validity of the principal applicant's H-1B status.  Loss of legal H-1B status by the principal applicant results in an automatic loss of H-4 status for their dependents.  
11. Action taken to extend or change the H-1B employee’s immigration status does not automatically grant extension/change of immigration status for their dependents.  H-1B employees must work with our outside counsel on H-4 petitions. OGI is not authorized to advise on or complete the Form I-539.  The Form I-539 and filing/fee instructions are available online at www.uscis.gov.  
12. It is the H-1B employee's responsibility to work with the sponsoring unit and/or University Human Resources to complete the I-9 Employment Eligibility Form. It is also the H-1B employee's responsibility to work with Human Resources to update the Form I-9 upon filing and approval of any subsequent H-1B extension. The Form I-9 is not automatically updated upon the filing/approval of an H-1B extension. By law, the H-1B employee must submit proof of work authorization.
13. H-1B employees must notify OGI in advance if they plan to spend more than 30 days outside of the U.S.

In order to enter the U.S., H-1B employees must present the following: 

• Valid Passport - As a general rule, passports must be valid for six months beyond the date the traveler will exit the United States. 

• Valid H-1B Visa* - If you have changed H-1B employers and possess a valid H-1B visa annotated with the name of a previous employer, you may continue to use your original H-1B visa for entry into the United States. 

• Valid I-797 H-1B Approval Notice - Upon approval you will receive your approval notice, please make sure it is kept in a safe place.

*Canadian citizens are visa exempt. 

If you need to apply for an H-1B visa, you must schedule an appointment at a consular post outside of the U.S. You cannot apply for a visa within the U.S. For more information and a list of required documents, please consult the webpage of the applicable consular post. You can check Visa Appointment Wait Times here. 

After arrival, it is your responsibility to access your Form I-94 Arrival/Departure Record and verify that you have been properly admitted. The Form I-94 governs your immigration status and duration of authorized stay. Accordingly, it is important that it is correct. Please note that U.S. Customs & Border Protection has the authority to limit your duration of authorized stay if your passport will expire prior to the expiration of the I-797 H-1B Approval Notice. If your duration of authorized stay has been shortened, promptly notify the International Faculty and Scholar Services office. 

Automatic Visa Revalidation – Travel to Canada or Mexico with Expired H-1B Visa for 30 Days or Less 

Under Automatic Visa Revalidation, certain non-immigrants holding expired visas who seek to return to the U.S. may be admitted at a U.S. port-of-entry by CBP, if they meet certain requirements. For a full list of requirements, please visit the Department of State and CBP webpages. Before traveling under automatic visa revalidation, be sure to review these requirements carefully.