Understanding H-1B Sponsorship
- Erik Simons
- William Vittetoe
Overview
Sponsoring a non-U.S. citizen for H-1B status allows that person to legally work for the University of Tennessee. Although there are other immigration statuses that allow employment, H-1B is the most common type of work authorization used by the university to employ non-U.S. citizens in professional positions. Sponsoring an employee for H-1B status can be a lengthy process and requires active participation from the sponsoring unit. The direct supervisor of the H-1B employee must have a clear understanding of the requirements and liabilities of H-1B status before agreeing to H-1B sponsorship.
Positions Eligible for H-1B Sponsorship
To qualify for H-1B sponsorship, a position must be a “specialty occupation.” The Department of Homeland Security defines specialty occupation as “an occupation which requires theoretical and practical application of a body of highly specialized knowledge and which requires the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.”
At UT, H-1B sponsorship is most often used for faculty, post-docs, and research associates, although other positions can qualify if they meet the definition of a specialty occupation. Positions that don’t require at least a bachelor’s degree in a specific field are not eligible for H-1B sponsorship.
Example 1: The Department of Mathematics has an opening for an Assistant Professor that requires a PhD in Math, Statistics, or a closely related field. This position meets the definition of a specialty occupation, because it requires at least a bachelor’s degree in a narrow range of specific fields.
Example 2: The Center for Global Engagement has an opening for an International Student Advisor that requires a bachelor’s degree, but not in any specific field. Candidates with a bachelor’s degree in any field will be considered for the position. This job isn’t eligible for H-1B sponsorship, because it doesn’t require a degree in a specific field and is therefore not a specialty occupation.
Steps for Requesting H-1B Sponsorship
When the decision to sponsor a position for H-1B has been made, please notify the ISSS team. ISSS will respond by sending the forms, instructions, and checklists necessary to submit a complete H-1B Request Packet. The process is managed through an online portal called iVols.
Forms and documents are uploaded to the iVols portal.
Sponsoring department/unit requests checks for the filing fees through IRIS. (Checks will be mailed directly to the Center for Global Engagement from the Treasurer’s Office.)
ISSS will determine the Prevailing Wage
If the proposed salary does not meet the prevailing wage requirement, ISSS will contact the sponsoring department/unit. If the salary can be increased to the required amount, department completes an H-1B Modification Form to confirm the new salary
ISSS posts a Labor Condition Application (LCA) notice for 10 business days.
If the employee will be working at any off-campus location, ISSS may ask the sponsoring department/unit to arrange for the LCA notice to be posted in two locations at that location before the LCA can be filed.
After the LCA notice has been posted in all work locations, ISSS will file a Labor Condition Application with the U.S. Department of Labor (DOL), and DOL will return a certified the LCA.
When the LCA has been certified by DOL, ISSS will complete an H-1B petition [Form I-129] and submit it, along with other necessary forms and documents, to the U.S. Citizenship and Immigration Services (USCIS).
USCIS reviews the H-1B petition and mails an H-1B approval notice (Form I-797) to ISSS upon approval.
If the H-1B employee is not already in the U.S., he/she must obtain an H-1B visa at a U.S. Consulate before entering the U.S. ISSS will send the petition approval to the employee, along with instructions for the visa application. This process may take 1-2 months or longer.
Timeline
Please be aware that the H-1B application process can take much longer than you might expect. There are many variables involved and many places throughout the process where an application can become stuck.
Please submit a complete and accurate H-1B Request Packet to ISSS at least 3-4 months before the anticipated start date of employment. Although ISSS has occasionally processed an H-1B in 2 months or less, a sponsoring department/unit should never count on that being possible.
Sponsoring departments/units sometimes mistakenly believe that an H-1B can be processed in only 15 days by paying an additional fee known as the premium processing fee. Premium processing only speeds up the final step in the process, which is USCIS’s review of the H-1B petition. All steps leading up to the final step must still be completed, even if premium processing is used.
Without premium processing, USCIS could take 4-6 months or more to process an H-1B petition. With premium processing, USCIS will reply within 15 business days. But ISSS still needs time to complete all of the steps leading up to submitting the petition to USCIS.
If the employee is outside the US, they will have the additional step of applying for a visa after the H-1B petition is approved. The visa application process could add 1-2 months or more to the overall timeline.
Cost
All costs associated with the H-1B petition must be paid by the sponsoring department/unit. The H-1B employee cannot pay the fees or reimburse the department/unit for the cost of the fees.
Fees paid to the Department of Homeland Security:
$460 filing fee (required on all petitions)
$500 anti-fraud fee (for initial petitions only; not required on extensions)
$2,805 premium processing fee (almost always necessary, but not strictly required; speeds up USCIS’s processing but not ISSS’s processing)
Fees paid to ISSS:
$1,000 processing fee for units housed outside of an academic college. Academic departments/units belonging to a college do not need to pay this fee.
$500 late penalty. All departments/units that submit an H-1B Request Packet to ISSS with less than 8 weeks of processing time must pay this late penalty. Paying the $500 penalty does not guarantee processing within 8 weeks and is not a fee to speed up ISSS’s processing times. It is a penalty for not allowing more than two months of lead time.
Compliance Considerations
When filing an H-1B petition, the university makes certain commitments to both the U.S. Department of Labor and the U.S. Department of Homeland Security. Departments/units that sponsor employees for H-1B must be active partners with ISSS in upholding these commitments. Direct supervisors of H-1B employees and other departmental personnel should familiarize themselves with the following information.
Wage Requirements
An H-1B employee must be paid the required wage, which is determined by ISSS in accordance with US Department of Labor (DOL) regulations. The required wage is equal to the prevailing wage or the actual wage, whichever is higher. The prevailing wage is the average wage of persons similarly employed in the same geographic area, as determined by the DOL. The actual wage is the wage rate paid by the employer to all individuals with experience and qualifications similar to the H-1B employee’s experience and qualifications for the specific position. If the offered salary does not meet the higher of the actual or prevailing wage, the offered salary must be increased to meet or exceed the higher wage in order for ISSS to continue with the H-1B process.
Work Locations
H-1B work authorization is location-specific. All work locations, including ORNL, must be included on the H-1B Request Packet. If a work location is not included in the H-1B Request Packet, the H-1B employee will not be authorized to work there. If an H-1B employee will move to a different work location or add a work location after the H-1B petition is filed, the sponsoring department/unit must notify ISSS before the employee begins work at the new location. A new H-1B petition must be filed to add the work location.
Changes in Employment
Because H-1B is a job-specific and location-specific type of work authorization, making changes to the position after an H-1B petition is approved can be difficult and time consuming. The sponsoring department/unit must report all potential changes in employment to ISSS before they take effect, including:
Job title
Department
Work location
Job description, including adding teaching duties
Decrease in salary
If ISSS determines that the change is a material change, then a new H-1B petition must be filed before the change can take effect.
Time Limit
An employee can be in H-1B status for a maximum of 6 years. This includes time spent in H-1B status with previous employers. There are a few limited exceptions to the 6 year maximum, but sponsoring departments/units should not plan on their employee having H-1B status for more than 6 years.
Employment or Payment Outside UT
USCIS approval of an H-1B petition from UT only authorizes employment by UT. If the employee wishes to accept employment or payment from another institution, the other employer must file their own H-1B petition with USCIS. This includes short-term consulting or free-lance work performed as an independent contractor. It also includes honoraria from other universities or organizations. However, the employee may be reimbursed for travel by another institution if related to his/her employment at UT.
Regulatory Background
The following regulations for the basis of H-1B policy at the University of Tennessee.
An H–1B classification applies to an alien who is coming temporarily to the United States: (1) To perform services in a specialty occupation (except agricultural workers, and aliens described in section 101(a)(15) (O) and (P) of the Act) described in section 214(i)(1) of the Act, that meets the requirements of section 214(i)(2) of the Act, and for whom the Secretary of Labor has determined and certified to the Attorney General that the prospective employer has filed a labor condition application under section 212(n)(1) of the Act
Before filing a petition for H–1B classification in a specialty occupation, the petitioner shall obtain a certification from the Department of Labor that it has filed a labor condition application in the occupational specialty in which the alien(s) will be employed.
“Authorized deductions,” for purposes of the employer's satisfaction of the H–1B required wage obligation, means a deduction from wages in complete compliance with one of the following three sets of criteria (i.e., paragraph (c)(9)(i), (ii), or (iii))— (i) Deduction which is required by law (e.g., income tax; FICA); or (ii) Deduction which is authorized by a collective bargaining agreement, or is reasonable and customary in the occupation and/or area of employment (e.g., union dues; contribution to premium for health insurance policy covering all employees; savings or retirement fund contribution for plan(s) in compliance with the Employee Retirement Income Security Act, 29 U.S.C. 1001, et seq.), except that the deduction may not recoup a business expense(s) of the employer (including attorney fees and other costs connected to the performance of H–1B program functions which are required to be performed by the employer, e.g., preparation and filing of LCA and H–1B petition)