Global Education Office

The information here is addressed primarily to hiring officials in an international employee’s VCU hiring unit, such as a Dean, Chair, or Human Resources Professional (HRP) or Human Resources Associate (HRA). International employees may find the information here instructive and helpful as well.

The H-1B visa is a common U.S. employment visa. It is an employer-sponsored visa, which means that an employee cannot apply for an H-1B visa on their own. They need their employer (in this context, VCU) to file a Form I-129 H-1B petition (application) with USCIS on their behalf. 

When USCIS approves the I-129 H-1B application, they will send a Form I-797 H-1B approval notice to the Global Education Office (GEO) for presentation to the employee with instructions for further use.

U.S. government and VCU eligibility requirements are addressed below.

To ensure excellent legal and customer service support, VCU’s H-1B visa applications are prepared by law firms under contract with the Office of the Attorney General (OAG) of the Commonwealth of Virginia to provide as-needed immigration services to state agencies. Routine access to OAG-contracted law firms for H-1B visa application support is through GEO.

GEO manages VCU’s visa programs including the university’s H-1B visa program. For legal compliance and customer service reasons:

• Routine access to law firms for H-1B visa application processing is through GEO.
• GEO reviews and signs, on behalf of VCU, all employer-side H-1B application materials prepared by the lawyer and submitted to USCIS.
• GEO provides essential employer-side legal compliance and customer service support to the hiring unit, employee, law firm, and such VCU units as central HR and Payroll throughout the H-1B visa life-cycle.

For support with VCU’s H-1B visa program, please contact GEO, Attn: Paul Babitts, Ph.D., Associate Director, International Student and Scholar Programs, email: babittsp@vcu.edu, Telephone: (804) 828-9615.

The basic U.S. government eligibility criteria for an H-1B visa are:

1. The job offered to the employee must require the theoretical and practical application of a body of highly specialized knowledge for which attainment of a Bachelor’s or higher degree (or the U.S. equivalent) in the specific specialty is required as a minimum for entry into the occupation in the U.S. (A higher degree in the specific specialty may be required depending on the job duties.) Regulatory citation: 8 CFR 214.2(h)(4)(ii) and
   8 CFR 214.2(h)(4)(iii)(A)
2. The employer must pay the employee the higher of the prevailing wage or the actual wage for the job for the duration of the USCIS H-1B approval. The prevailing wage for the job is determined by the U.S. Department of Labor (DOL). The actual wage is the wage the employer already pays similarly employed workers. Regulatory citation: 8 USC 1182(n) and 20 CFE 655.700(a)(2)
3. The employee must have the required degree in hand at the time the Form I-129 H-1B application is filed with USCIS. Regulatory citation: 8 CFR 214.2(h)(4)(iii)(C) and 8 CFR 214.2(h)(4)(iii)(D)
4. Not otherwise be ineligible for an H-1B visa due to their immigration history. For example, employee’s subject to the 2-year home country residency requirement of the J-1 regulations may be unable to obtain an H-1B visa approval from USCIS. Regulatory citation: 8 CFR 248.2

Each H-1B visa application is unique and other U.S. government eligibility requirements may apply in a specific case.

To be eligible for VCU H-1B visa sponsorship: 

1. The job and employee must clearly meet the U.S. government eligibility criteria indicated above.
2. The job should be full-time and must paid a W-2 hourly, weekly, bi-monthly, or monthly wage through Payroll, and receive the same benefits as similar jobs without interruption for the effective dates on their USCIS-issued H-1B approval notice. H-1B visas for part-time jobs are possible but the processing, costs, and compliance obligations are the same as for full-time jobs. H-1B visas for part-time jobs may be difficult for the hiring unit to justify in business terms.

If you have questions about this issue for a specific employee, please contact GEO for guidance.

The statutory maximum allowable time in H-1B status is six (6) years in increments of no more than three (3) years at a time.

Extensions beyond the statutory 6-year maximum may be possible if the employee has spent considerable time outside the U.S. since first obtaining H-1B status or (in some cases) if they have a Form I-140 approval notice (part of the Permanent Residence process).

H-1B visa approvals are specific to the following information provided to USCIS on the Form I-129 H1-B application:

• Employer (in this context, VCU)
• Employee
• Job title, duties, dates of intended H-1B employment, worksite(s), and wage
  
  

USCIS H-1B approvals do not provide free-range or open-ended employment authorization.

Pursuant to the Form I-129 H-1B petition filed by VCU for the employee, the employee may be employed by VCU only.

The employee’s VCU H-1B approval does not authorize them to:

• Work for the non-VCU entity with or without compensation
• Receive payments from a non-VCU entity for honoraria, speaking fees, book publishing advances, independent contract payment, sale of creative output, etc.
• Change VCU jobs at their or their hiring unit’s discretion

Yes but changes to the employee’s USCIS-approved H-1B working conditions cannot be made at the employee’s or hiring unit’s discretion. Almost always, a U.S. government update process must be completed before the change can become legally effective at VCU.

U.S. government update procedures vary by the nature and extent of the proposed change. Some update procedures can take 30+ days to complete and result in additional attorney and USCIS filing fees.

For legal compliance reasons, no changes may be made by VCU or the H-1B employee to their USCIS-approved working conditions without prior written confirmation from GEO that the necessary U.S. government update procedure has been completed.

To ensure institutional and individual compliance with the H-1B regulations:

1. The HRA should report the proposed change to GEO by email at least 30 days before the intended effective date of the change, copying the employee on the email.
2. The 30 day deadline is not absolute but the later the HRA informs GEO of a proposed change, the more likely the change cannot become effective on the intended date.
3. The proposed change cannot become effective until the HRA, the employee, and HR Compliance have received written confirmation from GEO that the necessary U.S. government update procedure has been completed.
4. Some changes such as immediate resignation or termination may be unexpected and thus reported to GEO later than 30 days prior to the change. Such immediate changes must be reported by the HRA to GEO by email (copying the employee) as soon as possible.
   
   

Proposed changes to report to GEO include:

• Employee resignation of their own will
• Employee termination at VCU’s initiative for any reason, including lack of work, loss of funding, or other cause
• Layoff or change from full-time to part-time (or vice versa)
• Leave of absence, including sabbatical, FMLA, administrative leave, leave without pay, etc.
• Promotion or change in job title
• Change in job duties in any percent
• Change in hiring unit or worksite addresses
• Wage increase or decrease in any amount and/or change in benefits
• Employee obtains another U.S. immigration status (example: Permanent Resident)

Yes. VCU and VCU Health are affiliated entities but they are legally separate. This means that H-1B visas obtained by VCU Health for their employees do not authorize employment by VCU—and H-1B visas obtained by VCU for its employee do not authorize employment by VCU Health.

If someone (typically a physician or other health care provider) is or expects to be employed by both VCU Health (duties relating to clinical services to patients) and VCU (duties related to research and teaching—including training medical residents) they need two H-1B visas, one for VCU Health and one for VCU.

For legal reasons, VCU and VCU Health cannot act on each other’s behalf. Initiating the VCU Health H-1B process has no automatic effect on the VCU side (and vice versa).

If an international employee is or expects to be dually employed by VCU Health and VCU, their HRA must email both employers’ H-1B visa contacts in a timely way to ensure that each employer’s H-1B process is initiated:

To start the H-1B visa process:

• The employee’s HRP or HRA must contact GEO by email
• No sooner than 8 months and no later than three months before H-1B employment authorization is needed.

The three-month deadline is not absolute but the less time available for overall H-1B visa processing among the various parties (see the previous question’s answer), the more likely the employee will experience a gap in employment authorization.

This gap could negatively affect the hiring unit’s staffing and operations and result in increased visa processing costs for the hiring unit. The gap could also create legal problems for the employee.

GEO needs to work briefly with the HRP or HRA on the matter. We will bring the employee into the process at an appropriate point shortly afterwards.

If you have questions about this issue for a specific employee, please contact GEO for guidance.

Yes. The spouse and minor children of an H-1B visa employee are eligible to apply for H-4 visas. While the H-1B visa is an employer visa, the H-4 visa is a personal visa (personal to the bearer). VCU’s support for the H-4 visa process is limited and generally excludes financial support for the process. GEO will address issue of H-4 dependent with the H-1B employee during the course of the visa process initiated for them.

Timelines

H-1B visa processing involves several parties (hiring unit, employee, GEO, OAG, law firm, and U.S. government agencies), each with their own timelines. Total H-1B visa processing time is a combination of all parties’ timelines! It is difficult to provide an estimated total H-1B visa processing timeline in the abstract, but the range is from 3-8 months.

Costs

H-1B visa costs are a combination of the attorney fee charged by the law firm to prepare and file an H-1B application with USCIS plus USCIS filing fees charged by the U.S. government to process the filed H-1B application. USCIS filing fees vary by the type of H-1B application that must be filed for the employee.

If you have questions about this issue for a specific employee, please contact GEO for guidance.

All H-1B visa processing costs required for VCU business necessity must be paid by the hiring unit with no contribution from the employee.

USCIS filing fees must be paid by VCU check(s) obtained by the hiring unit and submitted to USCIS with the H-1B visa application.

After the H-1B visa application has been filed with USCIS, the law firm will send an invoice for the attorney fee to GEO, and we will forward it to the hiring unit for payment.

The only exception to this rule relates to premium processing.

Normal USCIS processing time for H-1B visa applications varies by agency workload and staffing levels and can be as long as six months.

Premium processing provides for a 15-day processing time at USCIS, but USCIS charges $2,500 for the service—in addition to all other required USCIS filing fees.

• If the need for premium processing is VCU business need, the $2,500 fee must be paid by the hiring unit via VCU check.
• If the need for premium processing is the employee’s personal need (for example, driver’s license renewal, personal international travel, or peace of mind), the $2,500 fee should be paid by the employee via personal check.

Premium processing is most often required for VCU business need in the case of a new H-1B application for an employee who needs to start or continue VCU employment in H-1B status within 6 months. Indeed, the less time between the filing of the H-1B application and the employee’s need for USCIS approval, the greater the VCU business need for premium processing.

Premium processing is rarely required for VCU business need for the following types of H-1B applications:

If you have questions about this issue for a specific employee, please contact GEO for guidance.

Pursuant to the H-1B regulations, if the employee is:

1. Currently employed by the employer (VCU) in H-1B status, and
2. VCU files a Form I-129 H-1B application for them with USCIS requesting an extension of status; and
3. The H-1B extension application is received by USCIS before the expiration of the employee’s current H-1B employment authorization, then
4. The employee is eligible to continue to be employed by VCU for up to 240 days (approx. 8 months) while USCIS processes the extension application. USCIS will eventually send an H-1B approval notice to GEO, but the notice is not needed to authorize the employee’s continued employment.

Regulatory citation: 8 C.F.R. section 274A.12(b)(20)

In a relevant case, GEO will provide written confirmation to the employee, hiring unit, and HR Compliance that the employee is eligible for an automatic extension of H-1B employment authorization while USCIS processes the application. GEO confirmation cannot be provided until after USCIS has received the application.

If the employee is currently employed by another (non-VCU) employer in H-1B status and VCU files a Form I-129 H-1B application for them with USCIS requesting a change of employer (transfer) from the non-VCU employer to VCU, the employee can start to work for VCU while USCIS processes the H-1B transfer application.  GEO will provide written confirmation of this to the employee, their HR manager, and HR Compliance at the time that the H-1B transfer application is filed with USCIS.

U.S. Department of Labor Fact Sheet 62: What is Portability.

The H-1B visa is just one kind of U.S. employment authorization. Other visas that provide employment authorization include E-3, J-1, O-1, and TN visas and may be more appropriate than H-1B in a specific case.

E-3, H-1B, J-1, O-1, and TN visas are not easily interchangeable. U.S. government eligibility criteria vary widely and include such factors as the terms of the employee’s job offer and their citizenship.

If you have questions about this issue for a specific employee, please contact GEO for guidance.

Employer-sponsored visas such as E-3, H-1B, J-1, O-1, and TN require significant processing, cost, and compliance commitments by the hiring unit.

Some employees have, or can readily obtain, employment authorization on their own, which require little or no processing, cost, or compliance commitments by the hiring unit.

A common example of this is an Employment Authorization Card (EAD) issued to the employee by USCIS in connection with one of the following processes:

• Optional Practical Training (OPT)
• STEM OPT
• J-2 dependent spouse
• H-4 dependent spouse
• Asylum
• Deferred Action on Childhood Arrivals (DACA)
• Temporary Protected Status (TPS)
• Adjustment of Status

As a business decision, a hiring unit may choose not to sponsor an employee who can obtain an EAD on their own for a visa—or at least not to sponsor them for a visa yet.

The employee could then authorize employment with VCU using their EAD and the hiring unit would consider sponsoring them for a visa at a later date.

If you have questions about this issue for a specific employee, please contact GEO for guidance.

It depends.

If they are subject to the 2-year home country residency requirement of the J-1 regulations, they are not eligible to obtain an H-1B visa unless they either (1) return to their home country for at least 2 years or (2) obtain a U.S. government waiver from the requirement (either U.S. Department of State “No Objection” letter or USCIS Form I-612 waiver approval). Regulatory citation: 8 CFR 248.2

If they are not subject to the 2-year home country residency requirement of the J-1 regulations, they do not need to comply with it or obtain a U.S. government J-1 waiver, and this issue is not an obstacle to obtaining an H-1B visa.

If they are subject to the 2-year home country residency requirement of the J-1 regulations:

1. The process of obtaining a U.S. government waiver from the 2-year home country residency requirement of the J-1 regulations is tricky and time-consuming. If they do not already have a J-1 waiver in hand, do not assume that they will be able to obtain one quickly.
2. On the other hand, applying for a J-1 waiver from the U.S. government too soon can easily jeopardize the employee’s J-1 status. The J-1 regulations require the maintenance of nonimmigrant intent, i.e., the intent not to remain in the U.S. beyond the end of their J-1 program (usually the expiration date on their initial or extension DS-2019).
3. Applying to the U.S. government for a J-1 waiver can create the appearance of immigrant intent. Receiving a U.S. government J-1 waiver is often regarded as immigrant intent.
4. Immigrant intent jeopardizes J-1 status, and usually precludes: extending the current J-1 program (extension DS-2019), changing J-1 positions at VCU; and transferring the J-1 visa to another entity. It can also create challenges to obtaining a new J-1 visa stamp from a U.S. consulate abroad or successful admission to the U.S. in J-1 status by CBP.
5. As a J-1 visa sponsor, VCU cannot encourage the exhibition of immigrant intent including providing advice or support for a J-1 waiver application. The most we can do is recommend that the J-1 visa holder review information and guidance.

For support with VCU’s H-1B visa program, please contact GEO, Attn: Paul Babitts, Ph.D., Associate Director, International Student and Scholar Programs, email: babittsp@vcu.edu, Telephone: (804) 828-9615.