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H-1B Visa
The H-1B
nonimmigrant status is most frequently requested by The University
of Texas at Austin (petitioner) on behalf of an individual (beneficiary)
coming temporarily to the United States to perform services in a "specialty occupation" (H-1B). A "specialty occupation" is one that requires the theoretical and practical application of
a body of highly specialized knowledge.
To be eligible for H-1B status, a nonimmigrant must:
- Hold a U.S.
baccalaureate degree or higher, a foreign degree equivalent to
a U.S. degree,
- A state
license to practice the profession, or a combination of education,
specialized training and/or experience which can be substituted
for a U.S. degree.
- The offered
employment must require a minimum of a baccalaureate degree or
higher to qualify as a position in a "specialty occupation."
Other individuals who may qualify for H-1B status are artists,
entertainers, or fashion models having national or international
acclaim, artists or entertainers in a unique or traditional art
form, and nationally or internationally recognized athletes coming
to participate in a specific event.
The Immigration
Act of 1990, effective October 1, 1991, instituted new requirements
for H-1B visa applicants. A "Labor Condition Application" (LCA), also known as ETA-9035E, must be approved by the U.S.
Department of Labor before the H-1B petition may be submitted to
the Bureau of Citizenship & Immigration Services. The International
Office is responsible for reviewing and maintaining documentation
prepared by the hiring department in support of the LCA and H-1B
petition for prospective nonimmigrant employees of The University
of Texas at Austin. The International Office will submit the
applications to the appropriate federal agencies once the applications
and supporting documentation are properly completed.
Please provide accurate information for the completion of these
forms. The LCA and H-1B petition require attestations that may
subject The University to various penalties. Any aggrieved person
or organization may file a complaint during the LCA procedure. Therefore,
supporting documentation for the LCA must be kept on file and must
be available for investigation. Failure to meet a condition stated
in the LCA may result in:
- monetary
penalties not to exceed $1,000 per violation,
- employers
being barred from filing applications or attestations with the
Department of Labor to employ aliens on either a temporary or
permanent basis, and/or
- employers
ordered to provide for payment of back wages.
The H-1B regulations
require The University to attest that it will pay the reasonable
cost of return transportation for the beneficiary if the beneficiary
is dismissed from employment before the end of the period of authorized
employment. Please ensure that the departmental budget provides
for such a contingency.
If the prospective employee is currently in the United States
maintaining a legal nonimmigrant status (such as F-1 student, B-1/B-2
visitor, or H-1B for another employer) he/she may change status
to H-1B or extend H-1B status to begin new employment without leaving
the U.S. Some J-1 exchange visitors may be considered subject
to the "two year home country physical presence requirement" and are not permitted to apply for H-1B status until they have spent
two years in their original country of residence or have received
a waiver of this requirement. For further information about the
procedure to waive this requirement, request a copy of the Waiver
of the 2-Year Home Country Physical Presence Requirement information
sheet from the International Office.
If the prospective employee is not currently in the U.S.,
the employer must request in the H-1B petition that the Bureau of
Citizenship & Immigration Services notify the appropriate U.S.
consular post of the approval of the petition. The International
Office will forward the original Approval Notice (Form I-797) to
the nonimmigrant employee as soon as it is received. If the new
employee is outside of the US, the form should be used to apply
for the H-1B visa stamp at the U.S. consular post abroad. Individuals
in H-1B classification may enter the U.S. from a foreign country
up to 10 days before the appointment will begin.
Unless the nonimmigrant employee currently holds a visa status which
permits employment*, employment at The University may not begin
until approval of the H-1B petition (or the filing of a transfer
H-1B petition by UT-Austin).
*Please discuss any current visa status with the Faculty and Scholar Advisor to determine whether the employee is authorized to work
at The University of Texas at Austin.
H-1B
FAQ’s H-1B
Packet (updated 9/1/2007)
To begin an H-1B petition, please submit the following to the Faculty and Scholar Advisor at ISSS (campus mail code A7000):
1. H-1B Worksheet
The Worksheet should be completed on the computer, then printed and signed by the department chairman, dean or director.
2. Statement of Actual Wage Determination
The Statement should be completed on the computer, then printed and signed by the department chairman, dean or director.
3. Letter of Support
The sample letter (provided as part of the H-1B Packet) offers guidelines on what should be placed in the blanks of the letter of support (also provided). Once you have completed the letter, have it signed by the department chairman, dean or director.
4. Employee documents
The necessary documents are listed on the H-1B Employee Documents Checklist which is part of the H-1B Packet for Employee. Please forward this packet to the employee. Once the employee submits all of the documents from the checklist to you, please forward them to ISSS with the rest of the initial H-1B paperwork.
This enables us to obtain a prevailing wage from the Texas Workforce Commission. If we meet the prevailing wage, we will:
1. submit a Labor Condition Application (LCA) to the Department of Labor,
2. e-mail you a completed Form I-129, which will need to be used to order checks from the Office of Accounting,
3. e-mail you the check request instructions.
If we don't meet the prevailing wage, we will discuss the options that then face us.
The H-1B memo included in the H-1B Instructions for Department describes the H-1B visa type, explains when the University uses this type of work authorization, and provides some of the legal constraints by which we are bound.
In addition, please review the "Provost's Policy for Hiring Foreign Nationals" to ensure that we are allowed to process an H-1B for the position.
The H-1B Instructions for Department start with the document entitled "Steps to Obtaining the H-1B" which explains the process in more of an outline form, with a flow chart at the end. Please let your Faculty and Scholar Advisor at ISSS know if you have any questions.
H-1B Packet for Department:
H-1B Instructions for Department
H-1B Worksheet
H-1B Letter of Support
H-1B Packet for Employee |
