H-1B Visa

Overview

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:

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:

  1. monetary penalties not to exceed $1,000 per violation,
  2. 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
  3. 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

Given immigration processing times, please submit the H-1B initiation paperwork found below 6 to 7 months in advance of employment start date.

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.

 

  1. H-1B Packet for the Department, which includes:
  2. H-1B Packet for the Employee




For information on the ISSS Foreign Services Fee, please see the ISSS Foreign Scholar Services Fee webpage.

H-1B Extension

Given immigration processing times, please submit H-1B extension paperwork 6 to 7 months in advance of the current H-1B expiration date.

Please note that we will need the same documentation to proceed with the H-1B extension that we required for the initial H-1B filing.  As with the initial H-1B filing, 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. Please note that in filing an H-1B extension, the $500 US CIS fraud fee should not be required.  

In order to prepare the H-1B extension documents for filing, your Faculty and Scholar Services Advisor will need:

  1. H-1B Packet for the Department, which includes:
  2. H-1B Packet for the Employee
  3. Employee's Travel Plans
    In returning both the H-1B Department and Employee Packet and from the Department and the Employee to our office, please make certain that we are also appraised of the employee’s upcoming international travel plans in as much detail as possible for the upcoming six (6) months, even if these plans may be tentative, so that we can plan our filing strategy.
Please make certain that all documents are carefully completed in their entirety by both the department and and the employee before returning them to your Faculty and Scholar Services Advisor.

240 Day Period and International Travel

So long as an H-1B employee is not traveling internationally, then the employee may continue to lawfully work in the same position for up to 240 days while the H-1B status extension petition is pending with US CIS.  This is ordinarily possible even after the employee’s current H-1B status expires so long as the extension petition is timely filed.  Travel during the 240 day automatic extension of work authorization after the current H-1B period has expired is not allowed, however.  If the Employee were to travel during this time, then the employee will need to plan on staying abroad until the extension is approved, arranging to apply for a new H-1B visa to be readmitted back into to the U.S. in H-1B status.

Please let your Faculty and Scholar Advisor at ISSS know if you have any questions.