Understanding the H-1B Process and Obligations of Sponsorship
The Office of International Services [OIS from this point forward] is responsible for immigration sponsorship at Johns Hopkins [JH from this point forward]. NO OUTSIDE ATTORNEYS are permitted to be used to obtain an H-1B without the advice and consent of OIS. The OIS may instruct use of outside attorneys for some Health System entities. Use of an outside attorney also requires JHHS General Counsel (GC) approval. OIS will coordinate with GC and the department on those particular cases.
This information is for the use of the hiring departments of the Johns Hopkins Enterprise only. It is imperative that sponsoring departments read through this packet in its entirety. If you have never handled H-1B immigration matters previously, contact the OIS to register for training. Individuals who have not attended training will not be permitted to submit H-1B sponsorship applications for a hiring department.
Please destroy all previous versions of H-1B forms and instructions. Paperwork submitted following old guidelines [i.e. using paper forms] will not be accepted after February 23, 2014, and will create delays in the processing of a case. Always check the OIS website for updates on E-forms and/or process improvements.
The OIS is not involved with the actual hiring process at JH. This is coordinated between the hiring department and the appropriate Dean or Faculty Office for academic personnel and the department and the Office of Human Resources for qualified staff positions.
Once a foreign candidate has been selected (or is under consideration) for the position, OIS can then assist with immigration matters. The initial contact must be made by a departmental representative, not the foreign national.
In the event a department requests an unviable H-1B start date due to the time it takes to coordinate both internal and external components of the H-1B process, the OIS will determine workable H-1B start date in conjunction with the department and foreign national.
A petition for H-1B classification is filed with USCIS by the petitioner (the OIS, on behalf of a JH department/unit) that requires the services of a foreign national on a temporary basis. It cannot be filed by the foreign national.
It regularly takes four to six months to obtain approval of an H-1B petition (unless a department is willing to pay $1225 for USCIS Premium Processing service and expedite the adjudication process). Note that initial paperwork to request the start of the H-1B process may be submitted to OIS a full six months before the desired H-1B start date. Thus, departments that do not take full advantage of the six-month time period increase their likelihood of resorting to the $1225 premium processing service. Processing times change constantly and cannot be guaranteed. In addition to working with the department, the OIS must also work with the US Department of Labor (DOL) Office of Foreign Labor Certification and USCIS. JH has no control over processing times or their variance at these government agencies. A detailed map of the H-1B request process has been created to assist departments with planning.
H-1B status may be requested for a maximum of three years at one time. H-1Bs should be requested for at least one year, and typically should be requested for the anticipated duration of the position. Note that semester-by-semester appointments cannot be accommodated on an H-1B given the long processing time; advance planning is necessary.
For tenured and tenure-track faculty positions, the OIS recommends departments request approval for a full three-year period.
The maximum time permitted in H-1B status is six years. Note that time spent abroad during the six-year H-1B period may be recaptured if well-documented and approved by USCIS. The OIS suggests all H-1B temporary workers use the Recapture Worksheet from the time they are granted H-1B status.
There is NO grace period following the end of H-1B status, thus, a change of status, or plans to depart the U.S. must be anticipated as the end of H-1B status approaches. USCIS published a Final Rule for certain employment-based immigrant and nonimmigrant visa programs on November 18, 2016. The new rule went into effect on January 17, 2017. The rule includes some provisions for USCIS to grant a discretionary 60-day grace period for H-1B workers where certain conditions are met. As this grace period is not guaranteed or available to all H-1B workers whose employment ends, applying for an alternate status prior to the end of employment is still strongly recommended.
Transferability and Portability
H-1Bs are NOT TRANSFERABLE. They are approved for a specific job at a specific employer in a specific location. ANY CHANGES require consultation with OIS and sometimes prior approval by USCIS. If new to JH, foreign nationals inside the US must maintain an appropriate nonimmigrant status until the JH petition is filed and/or approved.
In certain circumstances, H-1Bs may be “PORTABLE,” allowing a foreign national to leave one H-1B employer for another H-1B employer even before USCIS has approved the new employer’s petition. The JH H-1B petition must have been filed with USCIS before a foreign national may use H-1B portability rules to begin working at JH. “Filed” constitutes receipt of a Notice of Action from USCIS that the case has been accepted for processing. NOTE: Individuals should maintain employment with the current H-1B employer at least until the JH petition has been received by USCIS and OIS has received proof of filing of the petition from USCIS. Departments must consult OIS if this option is of interest.
Travel & Consular Issues
Travel outside the US subsequent to initiation of the petition process will affect the processing procedures used in obtaining the H-1B approval for foreign nationals already inside the US. Please inform the OIS Advisor working with your department’s case of any travel plans by the foreign national PRIOR TO TRAVEL.
Delays with US consulates abroad may contribute to delays in the arrival of foreign nationals waiting to enter the US.
Obtaining approval of H-1B status from USCIS does not guarantee issuance of the H-1B visa by a US consulate.
A foreign national currently outside the US may not begin working for JH until the H-1B petition is approved by USCIS, OR enter the US more than 10 days before the start date on the approval notice. Therefore, where 10 days may not be enough time for the foreign national (particularly those with teaching responsibilities) to get settled in the Baltimore/Washington area before the start of the semester or other desired start date of employment, the OFFICIAL start date of employment requested from USCIS must account for any extra time needed. Please note that the foreign national must be in PAID status while in the US during any portion of the employment dates shown on the H-1B approval notice.
Only spouses and children under 21 may accompany the foreign national (dependent H-4 status).
Persons in H-4 dependent status MAY NOT work (unless they change to another nonimmigrant status which allows for work).
Positions used in the H-1B process must be paid or salaried, and must meet Department of Labor prevailing, or “minimum”, wage regulations as guaranteed by a certified Labor Condition Application (LCA).
Salaries may NOT be prorated. For academic year appointments, supplemental summer appointments must be compensated at the same rate per pay period as the academic year rate. This is pay that is over and above what is paid for the academic year.
Honoraria and consultation fees paid by an employer other than JH entity that sponsored the H-1B petition could constitute illegal employment under USCIS regulations.
Persons who are or have been in J-1 or J-2 status and are still subject to the “two-year home country residence requirement” are not eligible for change of status to H-1B until the two-year requirement is fulfilled or a waiver is obtained. The waiver process can take six months or longer. Sponsoring departments should not submit a request for such individuals without first consulting an advisor in OIS for guidance.