H-1B Process and Obligations of Sponsorship

Understanding the H-1B Process and Obligations of Sponsorship

The Office of International Services [OIS] is responsible for immigration sponsorship for Johns Hopkins University [JHU].

OIS is not involved in recruitment or the actual hiring process at JHU. This is coordinated between the hiring department and the appropriate Dean or Faculty Office for academic personnel or the hiring department or the Office of Human Resources for qualified staff positions.

Once a candidate has been selected for a position, OIS may provide immigration sponsorship advising. The initial contact must be made by a departmental representative, not the candidate.

Determining the start date for the H-1B request must allow sufficient time for both internal and external components of the H-1B process. All Departments should review the H-1B Business Process Overview before initiating a H-1B case. Departments should also review H-1B timelines and consult OIS with any questions.

An H-1B petition is filed with USCIS by the employer. The OIS, on behalf of a JHU hiring department, is the only office at JHU authorized to submit H-1B petitions to USCIS. Neither a departmental representative, nor a candidate may file a H-1B petition with USCIS.

Timing Issues

H-1B e-forms to initiate the H-1B sponsorship process may be submitted to OIS no more than seven months before the desired H-1B start date. OIS prepared H-1B timelines to assist departments and divisions in understanding this complex process. JHU has no control over government agency processing times, or their variance.

H-1B status may be requested for a maximum of three years at the time of application and should be requested for at least one year. So long as there is a reasonable expectation of continued employment and funding, OIS expects H-1B requests to be for three years. Only in extraordinary circumstances, and with approval from the OIS, will an H-1B for less than 12 months be considered.

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 (1) it is well-documented and (2) granted by USCIS. The OIS suggests all H-1B temporary workers use the Recapture Worksheet from the time they are granted H-1B status to track and document departures from the U.S.

Only in very narrow circumstances, do H-1B workers have a grace period following the end of H-1B employment. Thus, a change of status, or plans to depart the U.S. must be anticipated as the end of H-1B employment approaches. USCIS published a Final Rule for certain employment-based immigrant and nonimmigrant visa programs on November 18, 2016. The 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 strongly recommended.

Transferability and Portability

H-1Bs are NOT TRANSFERABLE. An H-1B petition is approved for a specific job at a specific employer in a specific location. ANY CHANGES in the terms of employment require consultation with OIS and usually require prior approval by USCIS [i.e. filing an amended H-1B petition with USCIS]. Candidates inside the US who will begin employment with JHU on an H-1B must maintain an appropriate nonimmigrant status until the JHU-sponsored H-1B 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 adjudicated the new employer’s H-1B petition. The JHU H-1B petition must have been filed with USCIS before a foreign national may use H-1B portability rules to begin working at JHU. Individuals should maintain employment with the current H-1B employer at least until the JHU petition has been sent to USCIS. To be cautious, JHU should be in receipt of a Notice of Action from USCIS that the case has been accepted for processing. However, the regulations do not require receipt to allow for portability.

Travel & Consular Issues

Travel outside the US may affect the H-1B case preparation and processing timeline. The H-1B Advisor processing the H-1B case will carefully review the H-1B applicant’s planned travel and advise the H-1B applicant if travel plans impact normal OIS processing time.

Delays with US consulates abroad may contribute to delays in the arrival of foreign nationals waiting to enter the US. Obtaining approval of a H-1B petition from USCIS does not guarantee issuance of the H-1B visa stamp by a US consulate.

An H-1B applicant currently outside the US may not begin working for JHU pursuant to an approved H-1B petition until the H-1B applicant enters the U.S. in H-1B status. Customs and Border Protection will not permit an H-1B applicant to enter the U.S. more than 10 days before the start date on the H-1B petition approval notice [Form I-797]. 

Dependents

Only spouses and unmarried children under 21 may accompany the H-1B applicant in dependent H-4 status. Individuals in H-4 dependent status MAY NOT work, however, in limited circumstances, some H-4 dependents may qualify for an Employment Authorization Document if the H-1B primary has taken steps towards permanent residency.

Other Limitations

Positions eligible for H-1B sponsorship must be paid or salaried, and must meet Department of Labor wage regulations as guaranteed by a certified Labor Condition Application (LCA). Further, JHU limits H-1B sponsorship to full-time positions only. For the purpose of H-1B sponsorship, “full-time” positions are 37.5/40 hours per week. Part-time positions are not eligible for H-1B sponsorship consideration at JHU.

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.

H-1B status is employer and employment specific and does not allow for employment outside of the H-1B position that has been approved by USCIS. To that end, honoraria and consultation fees may constitute illegal employment under USCIS regulations. H-1B workers should consult the OIS in advance of any activity that may provide any form of compensation. Unauthorized employment is a violation of H-1B status.

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. More information on the two-year home residency requirement can be found on the OIS website.