Office of Legal Counsel

It is important to note that non-immigrants who are currently or have been in the United States on the J-1Exchange Visitor Visa may be subject to the two-year home residency requirement and ineligible for the H-1Bstatus unless a waiver of the two-year home residency requirement has been granted or the individual has fulfilled this requirement. To determine H-1B eligibility, departments must obtain copies of immigration documents that reflect a complete history of the visitor entries and stay within the U.S.

Prior Financial signature approval is required before starting the H-1B process.

The immigration form used to request H-1B visa status has been revised and now includes an export control attestation. The H-1B export control attestation requires the University to certify that they have reviewed the export control regulations and made a reasonable determination about whether an export license is needed for the international employee.

The University of Memphis must pay 100% of the employee’s salary to be considered the employer. We must pay the H-1B worker the prevailing wage or actual wage, whichever is higher. Therefore, the salary required to move to the next step and request a Foreign Labor Certification must be equal or larger than the determined prevailing wage. OLC will notify the hiring department if the salary being offered is below the salary required to process the Labor Certification Application (“LCA”). If the salary offered is below the salary required to process the LCA, the department will be required to seek administrative approval to upgrade the salary and provide a copy of the approval to OLC. Once the salary has been confirmed, OLC will be able to submit a LCA.

Once OLC obtains the prevailing wage, actual wage, and administrative approval, OLC will process the LCA through the Department of Labor and will provide the department with two copies of the LCA to post at the worksite in a conspicuous location. The posting requirement of 10 business days will identify to all employees of the institution that the University will be filing an H-1B visa petition for a prospective employee with the title and salary identified on the LCA. The visual posting will not identify the international visitor.

This check list may be used as a guide for compiling the H-1B materials to initiate a petition through the Office of Legal Counsel (OLC). Once all materials are obtained, please submit the packet to OL for processing

a. H-1B Processing Form

• Complete all sections of the H-1B Electronic Processing Form and attach all required documents
• Print and sign the Memorandum/Letter of Support that is generated. (letter is suppose to be systematically generated)

b. Petition Fees
All fees must be on separate institutional checks payable to "US Department of Homeland Security". Below are the fees for an H-1B petition.

• $460 - I-129 Petition Fee
• $500 - H-1B Anti-Fraud Fee (only for new employment or transfer of employment, not required for extension).
• $2500 - Premium Processing Fee (this is optional, but reduces the 90 day USCIS adjudication time from 90 days to 15 days

c.  Employee forms and supporting documents;

• H-1B Employee forms and all applicable documents listed on the employee's checklist.

If you have any questions, contact the OLC office 901.678.2155 or email immigration@memphis.edu.

Please provide all relevant documents to your department contact so they may be included with the H-1B Processing form. If you have any questions contact OLC at 901.678.2155 or immigration@memphis.edu. 

1. ALL EMPLOYESS SHOULD INCLUDE:

• Completed H-1B Data Collection Form.
• Copy of highest degree diploma (with translation if not in English).
• Copy of your transcript of degree course work and letter of completion (if diploma not yet awarded).
• Copy of degree evaluation (if degree is from an institution outside of the United States).
• Copy of your CV/resume, with list of publications.
• Copy of identity page(s) (photo and bio page) and expiration date page of your passport.
• Copy of all DS-2019(s) and J-1 or J-2 visa (if you have ever held J-1 or J-2 status).
• Copy of USCIS Approval of Waiver of 2-year Foreign Residence Requirement (on form I-612), if applicable.
• Copy of U.S. Department of State Letter to USCIS recommending waiver of 2-year Foreign Residence Requirement.

2. IF YOU ARE CURRENTLY IN THE U.S., PLEASE ALSO INCLUDE:

• Copies of any immigration documents pertaining to your current status (examples: I-20, DS-2019, I-797, etc.)
• Copy of most recent visa.
• Copy of most recent I-94 card (arrival/departure record), Https://i94.cbp.dhs.gov/I94/#/home
• Copy of most recent Employment Authorization Document (EAD), if applicable
• Copy of 3 most recent earning statements/pay stubs (if current status is H-1B).,
• If you have dependents (spouse and children) who required H-4 dependent status:
  • USCIS Form-I-539 (www.uscis.gov/forms) “Change of Status Application,” completed by your dependent(s).
  • Check payable to “US Department of Homeland Security” in the amount of $370 & &85 biometric fee.

In order to facilitate the H-1B visa process, the department must fill out the Actual Wage section, providing the following information:

a. Employees – list all employees in your department who hold the same job title and similar skills, education and experience as the person for whom the H-1B petition will be filed.

• Education - Indicate each employee’s degree or educational equivalency
• Experience – indicate each employee’s years of experience accrued since the degree awarded
• Salary - indicate the current salary of each employee listed

b. When determining whether an individual has the same skills, education, and experience as the person for whom the H-1B petition will be filed, consider the following factors:

• Experience - length, type, relevancy, specialized knowledge.
• Education – degree(s), class rank, GPA
• Job responsibilities – major differences in the job duties performed such as major tasks, supervisory responsibilities
• Other legitimate business factors – professional distinctions, awards, publications, and documented meritorious performance

c.  After identifying all the employees who are comparable to the H-1B applicant, determine the range of wages paid to employees who are comparable to the H-1B applicant. This will be the actual wage. As previously noted, in order to support the H-1B applicant, he or she must be paid the higher of the actual or prevailing wage.

d. Have the preparer and the Department Chair sign the actual wage form.

• By signing the actual wage form, the Department Chair understands that the employees the department excludes from the "comparable employee" list must be defensible in a court of law, and should we be challenged on any of the exclusions, it would be the Department Chair’s responsibility to defend the exclusions. Consequently, Departmental personnel records must be properly documented.

University faculty wishing to nominate a foreign national for sponsorship by the University of Memphis must submit a Memorandum/Letter of Support. The Memorandum/Letter must have the approval from the appropriate department chair and submitted to OLC.??? if softdocs can generate letter let them know to generate it, print it, sign it and attach to softdocs else we have them to print and sign and to OLC. Removed the the statement about sample letter.

The Department must complete the necessary parts of the Visa Controls Verification section. Once the University's Research Compliance Office has co plete the review, the form will be forwarded to OLC Researchcompliance@memphis.edu. Once the Research Compliance Office has completed the review, the H-1B Process form will route to OLC

a. Evidence the visitor has the required degree by submitting either:

• A certified copy of the person's diploma (U.S. baccalaureate or higher degree which is required by the specialty occupation) in the original language; or
• A copy of the foreign degree and evidence it is equivalent to the U.S degree. (Generally established through a credential evaluation); or
• Education, specialized training, or progressively responsible experience that is equivalent to the U.S. degree required by the job.

b. Evidence of any required license or other official permission to practice the occupation in the state of Tennessee, if applicable;
c. A copy of a written contract between the University and the international visitor, or a summary of the terms of the agreement under which the visitor will be employed (if applicable).
d. A completed H-1B Employee Data Collection Form;
e. A copy of the visitor's curriculum vitae, including a list of publications; and
f. Copies of all immigration documents that reflect a complete history of all the visitor's entries and stay within the U.S.

a. All H-1B petitions (including initial, extensions, modifications, or transfers) are subject to a $460.00 application fee. The $460.00 fee must be an institutional check payable to US Department of Homeland Security. No personal checks will be accepted.

b. All H-1B petitions (filed as initial for someone outside the U.S.; transfer for a new employee who is currently on an H-1B with another employer; or, as a change of status for someone with the institution but on a different visa status) are subject to the Fraud Prevention and Detection Fee of $500.00. This fee must be paid by the institution seeking to sponsor an initial H-1B non-immigrant classification or seeking to change a beneficiary's employer. This fee is not applicable to petitions filed as modifications or extensions by the existing H-1B employer. Institutions of higher education are not exempt from the $500.00 fee. The $500.00 fee must be an institutional check payable to US Department of Homeland Security - no personal checks will be accepted.

c. Premium Processing Fee $2,500.00 (optional) – Departments may wish to pay this fee in order to expedite the H-1B applications once they are received by USCIS. USCIS regular processing takes between 120 and 180 days to process. Premium Processing shortens the response time (e.g. approval, denial, or request for further evidence) to 30 days. A copy of a written contract between the University and the international visitor, or a summary of the terms of the agreement under which the visitor will be employed (if applicable).

d. Institutional checks sent to OLC for H-1B applications (as indicated above) must identify the name of the individual for whom the check is to be used. Failure to have this noted on the check will result in delays in processing the application.

It is the responsibility of the hiring/hosting department to ensure appropriate institutional approval and clearance for processing the offer or appointment required in connection with the individual PRIOR to submitting a final visa request to OLC. This includes but is not limited to Human Resources (i.e. for salary guidance and job requirement), Benefits, Payroll, etc., as relevant.

Forward the memorandum/letter of approval, actual wage form, and attachments to the appropriate administrative office. Instruct the appropriate office to send the memorandum and all supporting documents to the Office of Legal Counsel when the approval or disapproval is given. Upon receipt of the above mentioned information/documents, the OLC will determine the prevailing wage. If there are no salary discrepancies, the OLC will submit the Labor Condition Application (LCA) to the Department of Labor. After the Department of Labor approves the LCA and the international visitor’s application information and filing fee have been received, OLC will submit the H-1B visa petition to the U.S. Citizenship & Immigration Service.

OLC will notify the department and visitor when the H-1B visa petition is submitted to USCIS. Any correspondence received by OLC from USCIS regarding the H-1B petition (e.g. I-797 Receipt Notice, I-797 Approval Notice, Request for Additional Evidence) will be shared with the department and visitor if and when received.

It is recommended by the federal government that the employers file the petition as soon as possible, but no earlier than six months before the visitor is expected to begin the appointment. Because OLC has no control over petition processing, departments are urged to allow eight months from the time they begin seeking institutional support to complete the process.

The Office of Legal Counsel will notify the department and the visitor when USCIS approves the H-1B petition. If the visitor will be entering the U.S. from abroad, it is important to note that entry into the U.S. cannot be made any earlier than 10 days prior to the begin date on the approval notice. It is important that the department and the visitor understand the visitor’s employment is contingent upon always having the appropriate working visa. Also, the institution must begin paying wages no later than 30 days after the H-1B nonimmigrant first enters the U.S. in H-1 B status, or no later than 60 days after a change of status becomes effective, if the nonimmigrant changed status in the U.S.

The Office of Legal Counsel stands ready to assist you and the visitor in complying with the procedures outlined above. If you have any questions needing immediate attention, please do not hesitate to contact the Office of Legal Counsel at immigration@memphis.edu. The Office of Legal Counsel is located in the Administration Building, Room 201. The office hours are Monday – Friday from 8:00 a.m. to 4:30 p.m.