HIRING NONIMMIGRANT

EMPLOYEESAT TEMPLE UNIVERSITY

A presentation byInternational Student and Scholar

Services

International Student and Scholar Services

Contact Information

• PHONE: 215-204-7708• FAX: 215-204-6166• URL: www.temple/edu/isss• E-mail: isss@temple.edu• Staff Information: – Martyn J. Miller, Ph.D., Senior Director• mjmiller@temple.edu; 1-4682

– Joan McGinley, Assistant Director• joanw@temple.edu; 1-1272

– Sharon Loughran, Immigration Services Specialist• sharonl@temple.edu, 1-3805

USEFUL TERMS TO KNOW• US Citizenship and Immigration

Service (USCIS): Branch of the U.S. Department of Homeland Security which has authority over all aliens in the United States, including international scholars and employees in J and H-1B visa status (www.uscis.gov)

• US Department of State (DOS): U.S. government agency responsible for issuing visas at U.S. consulates outside of the U. S. (www.state.gov)

USEFUL TERMS TO KNOW• Bureau of Educational and Cultural

Affairs (ECA): Branch of the U.S. Department of State (DOS) which has authority over J-1 Exchange Program Visitors, including students, scholars, and ECFMG-sponsored medical staff (http://exchanges.state.gov/jexchanges/j-1_visas.html)

• US Department of Labor (DOL): Government Agency that has authority of Labor Condition Application (LCA) needed for H-1B Petition (www.dol.gov)

USEFUL TERMS TO KNOW

•Program Sponsor: The agency or institution that issues a DS-2019 •Program: A program is defined as what someone has been admitted to the U.S. to do, for example, a researcher or teacher in the field of Math or History

USEFUL TERMS TO KNOW• DS-2019: This is the form used to obtain and

renew J-1 exchange visitor status. It includes details such as the J-1’s program sponsor, dates authorized in the program, and classification as a scholar or professor.

• Form I-94: This 3” x 4” white card is stapled in the passport near the visa. The purpose of the I-94 is identify the entry status, to show when someone last entered the U.S., and to advise the USCIS when the nonimmigrant leaves the US. This card is surrendered to the US Customs and Border Patrol or an airline employee when one leaves the US.

DS-2019 ApplicationFor J-1 Exchange Visitor

Status

Available online at www.temple.edu/isss/international/documents/JApplication.pdf

Employment Limitations for Temple’s J-1 Visa Holders

• Research scholar in J-1 status may work ONLY for the department who requested their presence

• J-1 program is NOT to be used for permanent employment

Employment Limitations for Temple’s J-1 Visa Holders

• Temple University is prohibited by U.S. law from sponsoring medical residents on our J program

• Research scholars in J-1 status are limited to five (5) years in this status.

If your department wishes to hire/invite an exchange visitor in J-1 status who is already being paid by another Temple department, your department must contact ISSS prior to any employment.

If a J-1 has a DS-2019 that states that s/he will work in Department X, s/he cannot be paid by Department Y without prior approval.

Employment in J-1 Status is Site-specific

If J-1 Is Not Sponsored by Temple

• The visiting scholar’s sponsor is identified on Certificate of Eligibility (Form DS-2019)

• The exchange visitor may act as an independent contractor; employment may only be “incidental” (such as a one-time lecture).

• Responsible Officer at other institution must “make a written determination whether such activity is warranted and satisfies the criteria.”

• If so, it is acceptable to offer expenses and/or honorarium.

H-1B Temporary Worker Status

The H-1B Temporary Worker Application is available online at

www.temple.edu/isss/international/H-1BApplicationProcess.html

Nonimmigrant Worker (H-1B) Status

H-1B (Initial, Change of Status) – TU must submit a petition to USCIS; employment may not begin until the petition is USCIS approves it.

H-1B (extensions) – TU must submit a petition to USCIS; employee may continue employment while waiting for approval as long as USCIS receives the H petition before the current expiration date; H cannot travel outside US until H petition is approved.

Nonimmigrant Worker (H-1B) Status

• H-1B (transfer from another organization) TU must submit a petition to USCIS; employee may begin employment upon receipt of Form I-797 (“receipt notice”) from USCIS; H cannot travel outside US until H petition is approved.

FEES FOR H-1B PETITION

Fee Submit with Which Petitions? Who Can/Must Pay?

$500 Anti-Fraud Fee Initial and Transfer Petitions ONLY

Department Only

$325 Application Fee Every H petition Department Only

$1225 Premium Processing Fee

Optional (if you need someone to start working quickly, this fee is necessary

Department unless there is a documented personal reason why H-1B applicant needs petition approved quickly (ex: traveling outside US for sibling’s wedding)

$290 I-539 Application Fee for H-4 dependents

Either H-1B applicant or Department

Please ensure that all applications are completed and signed and that all required materials are submitted at one time.

Submit a complete application to ISSS.Missing information will cause

unnecessary delays in processing of H petitions.

Given the nature of compiling a petition for H-1B status, ISSS

requests a minimum of eight (8) weeks to process a petition.

Please do not send the completed application more than

six months prior to the requested start date.

H-1B Process Once ISSS Receives Application:

•ISSS sends the Deemed Export Attestation Form to University Counsel for review by Outside Counsel. Please note that this process can take days or even weeks.

•Upon determination that the employee will receive the higher of either the prevailing  or actual wage, ISSS must comply with Department of Labor (DOL) posting notice requirements and then submit the LCA to the DOL.

•Once the LCA is certified by DOL, ISSS begins working on the I-129 and support letter.

H-1B Process Continued:•When the H 1B application is ready, ISSS express mails it to the USCIS via UPS

•USCIS mails a Receipt Notice to ISSS, which usually takes two or three weeks after a petition is received (unless petition is Premium Processed in which case we receive an electronic receipt a day or two after USCIS receives petition.

•USCIS mails an Approval Notice to ISSS. Regular Processing Times vary greatly….Premium Processing guarantees a Response from USCIS within 5 days from date USCIS receives H-1B petition. The original Approval Notice will arrive by post.

If the person you wish to hire is currently abroad and has never held H-1B status,

s/he must wait abroad until the H petition is approved. The USCIS will

notify the US Consulate closest to that person’s residence of the approval. The prospective employee must then apply

for an H-1B visa stamp. This could take days, weeks or months, depending on such factors as length of security and

criminal checks, wait time at US Consulates, and holidays.

• Actual wage - amount being paid to all other TU employees with similar experience and qualifications for the specific position at the particular laboratory, center or department [for example, all T25 or V-14 level employees, all 1st Year Post Docs or PGYs, etc] –

• This is a Temple salary range or amount

H-1B Required Wage Rate

H-1B Required Wage Rate

The actual wage is determined by various factors, including experience, highest degree earned,

number of publications, etc.

Example of Actual Wage Rate

Let’s say that there are two Associate Scientists in your department; one earns $48K and one earns $52K…now you want to bring in another Associate Scientist and pay her $50K…we need to look at how much experience all 3 employees have, how many publications, etc. before we can determine the Actual Wage Rate. She may need to earn at least $52K if she has the same or more experience/publications than the person earning $50K.

Example of Actual Wage Rate

Your department may feel that she should earn less than the $52K employee for a certain

reason…you would need to provide a written explanation and ISSS would need to determine if

that reason meets DOL criteria. If your department states that she should not earn $52K because she earned her degree outside the US, ISSS would not accept that argument since DOL

states that is not an acceptable reason for a lower salary.

H-1B Required Wage Rate

• Prevailing wage - rate being paid in the greater Philadelphia area for the same occupation. If employment will take place at more than one site, we must determine the prevailing wage for both/multiple locations

• This is a DOL wage rate or a wage rate from a salary survey (like AAMC)

H-1B Required Wage Rate

The H-1B must be paid the higher rate of the prevailing or actual wage. For instance, if Temple will pay the H-1B

applicant $45K (actual wage) but DOL has determined the wage rate should be

$46K (prevailing wage), department must pay the H-1B applicant $46K

before we can file the LCA.

End of Employment Issues

Liable for Back Pay until H petition is withdrawn:DOL’s Administrative Review Board held that an employer must pay the required salary to a terminated worker after the date of termination, until the employer can prove that it notified USCIS of the H-1B’s termination.

This means that your department must notify our office immediately upon termination of an H-1B. We must then notify USCIS. Your department can be liable for back pay until USCIS withdraws the petition.

End of Employment Issues

The hiring department is obligated to pay the reasonable costs of the foreign national’s return trip to his/her home country if the H-1B’s employment is terminated by the University before the expiration of the employment approved by USCIS. This does not apply if H-1B voluntarily leaves Temple.

A “transfer H-1B” is someone who has held or currently holds H-1B status and is currently working at another institution.

Department needs to wait for Receipt

Notice not the Approval Notice before allowing a transferring H-1B employee to begin working.

Please note, however, that we still need to wait for the Department of Labor to certify the LCA and for a receipt notice from the UCIS, so this process can still take from four to six weeks unless your department Premium Processes the petition.

H-1B Portability

Time Limits of H-1B Status

• H-1B for no more than 3 years, depending upon the offer of employment letter. Extensions of stay may be requested for up to 3 more years for a total of 6 years. (ISSS can petition for additional years in H-1B status if the H-1B has applied for a green card and meets certain criteria for an additional extension.)

• Department may be held liable for back pay if ISSS is not notified when an H is terminated, voluntary termination or not.

• Normally USCIS will only issue H-1B employment authorization for the length of a required Training State License (if applicable).

• USCIS determines the length of time they will grant H-1B work authorization.

• Please note that there is no grace period for H-1B status.

TN Nonimmigrant Worker

The TN classification was developed as part of the North American Free Trade Agreement (NAFTA) to facilitate the entry of Canadian and Mexican citizens to the United States to engage in professional business activities.

Employment Limitations for TN Status

• Can only work for the organization that petitioned for their services;

• Is not applicable for those who have already filed for permanent residency (i.e., does not permit dual intent); and

• Does not apply to all positions; common positions for TNs are Post Docs and Faculty (TN list available at www.temple.edu/isss/international/nafta.html

TN—TRADE NAFTA

• (For Citizens of Canada & Mexico)• Know Expiration date on I-94 Card• Sponsoring Employer Specific for a

Fixed Period• Canadians require only I-94; Mexicans

require I-94 and TN VISA Stamp• Not Your TN? Then No Honorarium,

No Salary or Wage, OK—Expenses Only!

MISCELLANEOUS

• CAUTION: Dependent Status Issues: J-2, F-2, H-4, etc.

• Does J-2 have EAD? If not, no employment and no honorarium is acceptable.

• F-2, H-4 (without an EAD card): No Employment, No Honorarium, etc.

• F-2 and H-4 with EAD Card can accept employment but may be jeopardizing their current status

General Rules Regarding Volunteering

per 29 CFR 553.101 • Institution can not have someone “volunteer”

for work that is normally a paid position • If your department benefits in some way,

probably not a volunteer situation• Are the services performed for civic,

charitable or humanitarian purposes? If not, most likely not a volunteer situation

• For more information, please contact HR. General information available online at www.temple.edu/isss/general/volunteering.html

Contact ISSS with any questions that you may have:

Sharon Loughran1-3805 (office is 1-7708)

sharonl@temple.eduisss@temple.edu