H-1B Process and Obligations of Sponsorship

Understanding the H-1B Process and Obligations of Sponsorship

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

This information is for the use of the hiring departments at JHU. Individuals who have not completed H-1B training will not be permitted to submit H-1B sponsorship applications for a hiring department.

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

Once a foreign national candidate has been selected (or is under final consideration) for a position, the OIS may assist with immigration matters. The initial contact must be made by a departmental representative, not the foreign national candidate.

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 a reasonable H-1B start date in conjunction with the hiring department and foreign national candidate.

A petition for H-1B classification is filed with USCIS by the petitioner (the OIS, on behalf of a JHU hiring department) that requires the services of a foreign national on a temporary basis. It cannot be filed by the foreign national candidate.

Timing Issues

It takes more than six months to obtain approval of an H-1B petition without Premium Processing. H-1B e-forms to initiate H-1B sponsorship process may be submitted to OIS a full seven months before the desired H-1B start date. 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. JHU 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 the time of application. H-1Bs must be requested for at least one year, and typically should be requested for the anticipated duration of the position. Only in extraordinary circumstances, and with approval from the OIS, will an H-1B for less than 12 months be considered.

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 (1) 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 these departures.

Only in extremely narrow circumstances, do H-1B workers have a 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 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 usually require prior approval by USCIS [i.e. filing an amended H-1B petition with USCIS]. Foreign nationals inside the US who will begin employment with JHU on an H-1B must maintain an appropriate nonimmigrant status until the JHU 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 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 subsequent to initiation of the H-1B petition process may affect the processing procedures used in obtaining the H-1B approval for foreign nationals already inside the US. TheH-1B Advisor processing the H-1B case will carefully review planned travel by the foreign national while preparing the H-1B petition.

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.

Dependents

Only spouses and children under 21 may accompany the foreign national (in dependent H-4 status). Individuals in H-4 dependent status MAY NOT work, however, in limited circumstances, H-4 dependents who are in advanced stages of the permanent residency process may qualify for an Employment Authorization Document.

Other Limitations

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). Further, JHU limits H-1B sponsorship to full-time positions only. Part-time positions are not eligible for H-1B sponsorship consideration by 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. The waiver process can take six months or longer.