Purpose
To provide guidelines for the employment of a candidate with an H-1B status and to outline the legal requirements and responsibilities for employment of individuals in this category.
- If a hiring committee recommends a candidate with an H-1B status or a candidate is requesting resident citizenship, the hiring chair or their administrator should, consult with and secure the approval of their Executive Vice President (or highest level administrator) and the Chancellor.
- If approved, the Executive Vice President (or highest-level administrator) should contact the Office of Human Resources to discuss the proposed candidate and process.
- The Office of Human Resources shall determine the feasibility of employing the candidate. Once it is determined that the candidate may be hired, the Office of Human Resources shall coordinate the process to secure the H-1B visa or resident citizenship.
- If there are issues in hiring the candidate, the Office of Human Resources shall discuss the issues with the Executive Vice President (or highest-level administrator) and legal counsel, if necessary.
- The candidate may be asked to pay for pertinent fees for processing the application.
- The Office of Human Resources shall coordinate the application process and process payment, as approved by the Executive Vice President (or highest-level administrator) and the Chancellor.
- Prevailing Wage Determination: The Office of Human Resources will request a prevailing wage determination from the Texas Workforce Commission (TWC) in Austin to comply with the requirement that H-1B non-immigrants will be paid at least the prevailing wage level for the occupation in the area of intended employment or the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment, whichever is higher. The hiring department shall submit a complete job description to the Office of Human Resources. This must include the minimum degree requirement; number of years of experience required for the position, if any; number of workers H-1B employee will supervise, if any; proposed salary and dates of employment; and location of proposed employment. It takes approximately 2-4 weeks to process the necessary paperwork for approval of an H-1B foreign national.
- Actual Wage Determination: The Compensation Area in Human Resources shall complete the Actual Wage Determination Form to verify the actual wage for this position. The actual wage is defined by the Department of Labor as the wage paid by the employer to all other individuals with similar experience and qualifications as the H-1B worker for the specific employment in question at the place of employment, e.g., the wage paid to all postdoctoral research associates the first year after completion of their degrees, working in a particular laboratory in the Chemistry Department, where an H-1B worker has been hired.
- The Actual Wage Determination Form must be completed before the Labor Condition Application can be filed with the Department of Labor. The Office of Human Resources will keep this sheet with the documents required of employers by the Department of Labor.
- Labor Condition Application: The Office of Human Resources will complete Form ETA 9035, Labor Condition Application (LCA), and submit two (2) copies to the Department of Labor for certification of working conditions for the H-1B beneficiary. Information needed to complete the LCA includes: job title, proposed rate of pay, proposed dates of employment (maximum time for initial H-1B application is 3 years), and location of employment. (Processing time: 7-10 days.)
- Posting Requirements: A notice of filing the LCA must be posted simultaneously in two conspicuous locations on or before the date the LCA is filed with the Department of Labor. The posting locations will be in the hiring department and the Office of Human Resources Employment Office. Human Resources will prepare the notices and distribute one to the department representative for posting for at least ten (10) days. After the notices have been posted, they must be returned to the Office of Human Resources. The notice will be maintained on file in the Office of Human Resources.
- Payment of Cost of Return Transportation: The H-1B regulations require that the employer submit a signed statement that the employer will pay the reasonable cost of return transportation if the foreign national is dismissed before the end of the period of authorized employment. This statement will be signed by the Vice President of Human Resources.
- Maintaining Documentation: Regulations require that documentation filed in support of an H1B petition must be available for public inspection within one (1) working day of the filing of an application. The documents to be maintained include the H-1B petition, the LCA, prevailing wage and actual wage information obtained from the department and TWC, and the posted notices. This documentation must be maintained for one (1) year after the period of employment listed on the LCA or, if a complaint has been filed, until the complaint is resolved. The Office of Human Resources will maintain the documents and make them available upon request.
- Human Resources will consult with the hiring supervisor regarding the job offer letter. The job offer letter must state the title, description of duties, beginning and ending dates of employment, and salary and any outstanding conditions of employment. This letter should include the phrase “this offer is contingent upon obtaining the proper visa or residency status” or other appropriate language.
- The foreign national employee candidate may be asked to provide the necessary information, including the following:
- Photocopy of highest diploma earned, and signed statement which states photocopies are exact copies of the original documents. If a diploma is not available, a statement from a registrar or academic department stating that all requirements for degree have been completed. An official transcript may be submitted instead of the diploma. If documents are not in English, a certified English translation must be obtained. Verification of the field of study is also required.
- Curriculum vitae or resume, including a list of publications.
- Photocopy of Form I-94 (arrival/departure record).
- If changing from F-1 to H-1B, submit a copy of Form I-20 and a copy of authorization for practical training (EAD – Employment Authorization Document).
- If changing from J-1 to H-1B, submit copies of all Forms DS 2019 and proof of being “not subject” to 2-year foreign residence requirement.
- Copies of previous H-1B documents, if requesting extension of current H-1B status.
- Form I-129: Petition for Nonimmigrant Worker. This application will be completed by the Office of Human Resources with information furnished by the foreign national. (2 copies must be submitted to INS).
- Dependents: Form I-539: Application to Extend or Change Nonimmigrant Status. This application must be completed for dependents to change or extend status along with the primary applicant, and photocopies of dependent’s I-94’s must also be submitted.
- Appropriate INS application fees, as agreed upon by the College and applicant.
- A separate application to request Consular Notification of petition approval may be submitted with the initial H-1B application for use in applying at a U.S. Embassy or Consulate for an H-1B visa to return to the U.S.
- Completion of employee information on Form I-129. Actual Form I-129 will be completed and signed by the Office of Human Resources.
- The Office of Human Resources shall notify all parties of the status of the application.
Back to Top