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Home Legal Counsel Immigration H-1B Visa

H-1B Visa

The H-1B is an employment based nonimmigrant visa status that allows foreign nationals to come to the United States and work in a "specialty occupation." A specialty occupation is defined as a position that requires at least a Bachelor's degree in a specific field and theoretical and practical application of a body of highly specialized knowledge in order to perform the job duties. The H-1B is the most common visa classification for the employment of University of Memphis ("UofM") nonimmigrant faculty and staff.

Federal law makes clear that H-1B employment is employer and job-specific. Therefore, an H-1B employee can only be employed by the UofM department that sponsored the H-1B petition. No other employment, on or off campus, is permitted without separate approval from U.S. Citizenship & Immigration Services ("USCIS").

The entire H-1B petition process can take a significant amount of time. The Office of Legal Counsel ("OLC") needs approximately 4-6 months advance notice, prior to the anticipated employment start date, to prepare an H-1B petition, so please allow ample time in the hiring process.

In order to initiate the H-1B petition process, please contact the OLC to at visa@memphis.edu. The OLC will provide the employing department with all necessary Application Packets/Forms. Below is general information for hiring departments who have sponsored or are interested in sponsoring a foreign national for an H-1B visa.

Initial Criteria for Sponsorship

  1. The position must require at least a Bachelor's degree in a specific field. This employee must have the U.S. equivalent to a Bachelor's degree or higher and the degree must directly pertaining to the position.
  2. The Department must pay all USCIS fees relating to the H-1B petition. See below for specifics about required fees.
  3. The Department must agree to pay the reasonable costs of the foreign national's return transportation to their home country should the Department terminate the employment before the expiration of the employment term approved by USCIS.
  4. The approval of the Department Chair or Head must be obtained. Although general information may be discussed beforehand, the OLC will not initiate the H-1B petition process until appropriate approval is received from the Department.

Length of Stay in H-1B Status

H-1B status can normally be awarded for a maximum of six (6) years, but in increments of no longer than three (3) years at a time. Once the six (6) year maximum has been reached, the foreign national must reside outside the U.S. for 12 months in order to return in H-1B status.

There are limited circumstances in which extensions past the sixth year are possible, but only if the foreign national is the beneficiary of an employment-based green card application. The OLC will evaluate each case to determine if such extensions are possible.

Wage Determination

Employers sponsoring individuals for H-1B status must pay a "required wage rate." The required wage rate is determined by the OLC and is equal to the actual wage or the prevailing wage, whichever is higher.

  1. Actual Wage: The wage of other UofM employees with similar experience and qualifications for the job in question. In most cases, this is the wage that people doing the same work with the same level of experience, skills and accomplishments are paid.
  2. Prevailing Wage: The wage paid to people who are in a similar occupation in a given geographic. This wage is based on external wage data, provided by the Department of Labor ("DOL"), and takes into account the requirements that the DOL considers typical for the occupation.

Filing Fees

The hiring Department is responsible for the H-1B petition fees. The hiring Department is also responsible for the Premium Processing Fee if the Department requires a quick decision from USCIS.

                      Fee                             Fee Type

                      $460                            I-129 Filing Fee (for initial, extensions, amendments or transfer H-1B cases).

                      $500                            Anti-fraud fee (for initial or transfer H-1B cases).

                      $2,805                         Premium Processing Fee (optional; 15 calendar day processing).

The hiring Department will also be responsible for administrative expenses associated with an H-1B Petition, such as courier costs.

Extension of Stay

To extend the status of an H-1B worker, the hiring department must contact the OLC to request an extension 4-6 months prior to the H-1B expiration date.

Amendment of H-1B Employment

An H-1B worker must file an amended or new petition, with fees, if there are any material changes in the terms and conditions of employment. Material changes in employment may include, but are not limited to, significant pay increases, changes in job duties, and change in job location. The hiring department must contact the OLC to request an amendment 4-6 months prior to the implementation of any material changes in the employment of an H-1B worker.