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H-1B Temporary Workers

The H-1B visa is available for employees who can be considered "temporary workers in a specialty occupation." Specialty occupations are positions that require the theoretical and practical application of specialized knowledge and skills. Consequently, H-1B positions require possession of at least a bachelor's degree (or the equivalent combination of education and experience) in a specific field of study. Tufts uses the H-1B visa to obtain work authorization for temporary or permanent faculty, researchers, and certain administrative positions requiring specialized knowledge.

H-1B Features

The primary characteristics of the H-1B visa include the following:

  • Specialty Occupation: The individual must be hired to a position that meets the definition of specialty occupation. In most cases, this means that the position must require the minimum of a bachelor's degree in a specific disciplinary area, and the employee must possess the requisite educational credentials or a combination of education and relevant experience. Positions that do not require specialized knowledge do not qualify for H-1B status.
  • Wage Requirement: The position must offer the employee the higher of the actual wage (the wage offered to similarly employed and qualified individuals) or the prevailing wage (the regional average for similar occupational positions). The International Center will determine the prevailing wage based on the employee's position characteristics and duties.
  • Authorization Maximum: The employment may be initially authorized up to three years, with the possibility of further extensions up to a maximum of six years. Certain individuals who are in the process of obtaining permanent residence may be eligible for additional time beyond the six-year maximum.
  • Deemed Export Attestation (see below): The employer must determine whether a license is required if the employee will have access to items or technology (including data, equipment, software, technology or data)  controlled under the Export Administration Regulations (EAR) administered by the US Department of Commerce and the International Traffic in Arms Regulations (ITAR) administered by the US Department of State.
  • USCIS Authorization Required: The position requires the employer to submit a petition to the US Citizenship and Immigration Services (USCIS) for approval. USCIS approval must be granted prior to the start of employment.
  • Employer- and Job-Specific: H-1B authorization is employer- and job-specific, which means that the H-1B temporary workers can only work for the specific employer and specific position for which they received USCIS authorization. Any changes to the employer or material changes to the sponsored job or position may not be undertaken without prior authorization from USCIS.
  • Return Transportation for Terminated Employees: If the H-1B worker is terminated or dismissed before the petition authorization period expires, the employer may be required to pay the reasonable costs of return transportation to the worker's last country of residence.

Requesting an H-1B Temporary Worker

Sponsoring an international employee as an H-1B temporary worker requires several steps. Departments should contact the International Center as soon as an international employee, especially in permanent / tenure track positions, has been identified. Following a request from the department or hiring unit, the International Center will prepare and submit a petition to the US Citizenship and Immigration Services (USCIS). Preparation of the petition may take up to two months, and USCIS can take six to eight months to review and approve the petition. For this reason, the International Center strongly recommends that departments initiate the H-1B request process as early as six months before the employee is expected to start employment at Tufts.

Step One: Department Initiates Request with International Center

Once an international employee requiring sponsorship has been identified, the department should contact the International Center to initiate sponsorship processes. To begin a preliminary assessment, the Department should email the appropriate International Center contact (see Section B, below) with the following information:

  • Employee and department name and contact information
  • Offered position / title, employment start date, and full-time / part-time status
  • Expected duration of the position, indicating whether the position is temporary (e.g., visiting position, postdoctoral position, grant-funded) or permanent / continuous
  • Brief (2-3 sentence description of duties)
  • Whether the employee is currently in the US in H-1B or another immigration status (if known)

Based on the information provided, the International Center may explore whether or not other visa options (such as the J-1 scholar visa) exist.

Step Two: Data Collection

Once the International Center has determined that the employee and position qualifies for H-1B sponsorship, your H-1B advisor will initiate a data collection process that requires submission of information from both the department and the individual employee. Your contact will advise on the specific documents and information that will need to be submitted to the International Center.

Step Three: Determination of Wage Requirements

Based on the information provided, the International Center will obtain a prevailing wage for the position. To qualify for H-1B status, Tufts must offer a wage that is the higher of the actual or prevailing wage for the position. The actual wage is the wage offered by the employer to employees who have similar credentials and who are performing similar duties as the H-1B worker. The prevailing wage is the regional average wage for persons engaged in the same or similar specialty occupation. The International Center will determine if the position meets the wage requirements. If the position does not meet the wage requirements, the department may need to revise the wage offered to the employee or withdraw the offer of employment.

Step Four: Filing a Labor Condition Application

Once the wage has been determined, the International Center will file a Labor Condition Application (LCA) with the US Department of Labor. The Department of Labor will determine if the wage and working conditions are appropriate to the specialty occupation by approving the LCA. In addition, the department is required to post copies of the LCA in two conspicuous locations at the employee's work site for a period of ten days as a part of the LCA approval process.

Step Five: Filing a Form I-129 Petition for Nonimmigrant Worker

Once the LCA has been approved, the International Center will submit a Form I-129 Petition for Nonimmigrant Worker to USCIS. USCIS may take several months to process the petition. However, USCIS also provides a premium processing option that will expedite review to a fifteen day response period (see the separate section below on premium processing). The International Center will advise the department if premium processing is either advisable or necessary for an individual case.

Step Six: USCIS Approval and Visa Application

USCIS will review the I-129 petition. In many cases, USCIS may request further evidence to clarify different aspects of the University's petition for the employee. Once USCIS receives all required information, it will approve (or deny) the H-1B petition. Once approved, USCIS will send an I-797 Approval Notice to the International Center. The Approval Notice will be sent to the employee who will then need to apply for an H-1B visa at a US consulate overseas (exception: Canadian citizens are not required to apply for visas). If the employee is already in the US in another status, USCIS will approve a change in non-immigrant status to H-1B status.

Step Seven: Arrival in the US and Commencement of Employment

Once the H-1B employee has obtained their H-1B visa, they may enter the US up to ten days prior to the start of employment. They will request H-1B status upon arrival at a US port of entry. For those employees already in the US in another status, USCIS will indicate when their H-1B status becomes effective. The employee is then expected to commence employment with Tufts on the approved H-1B start date. If there are any delays to the ability of the employee to start employment on the approved H-1B start date, contact the International Center immediately.

To request initial H-1B status for an employee, follow the procedures indicated below.

Prior to Starting the Request: H-1B Data Collection

The sponsoring department should be prepared with the following information prior to starting the H-1B request process:

  • the employee's CV
  • the exact position description for the employee, along with the offered salary and any other compensation
    • special duties, skills and qualifications, and other details relevant to the position should be provided
  • the expected start date of employment
  • checklist of sensitive research areas (forthcoming)
  • the requested length of H-1B employment sponsorship*

* Departments may request a maximum of three years of H-1B authorization for an employee at any one time, even if confirmed employment is less than three years. However, if the job opportunity is terminated before the expiration of the H-1B period, the department may be required to pay the reasonable costs of return transportation to the employee's last country of residence.

Once you are ready to initiate a request, please contact the H-1B advisor for your school:

Sarah Curry (Sarah.Curry@tufts.edu) Ghenwa Hakim (Ghenwa.Hakim@tufts.edu)
Schools
  • Arts & Sciences
  • Cummings School of Veterinary Medicine
  • Engineering
  • Fletcher School
  • SMFA
  • Boston Health Sciences (including Friedman / HNRCA)
  • Central Administration units

 

H-1B status may be granted for up a maximum of three years and renewed for additional periods up to a maximum of another three years, for a total of six years. An employee may establish eligibility for another six years if they depart the US for a minimum of 12 months before returning for a new period of H-1B authorization.

Requesting an H-1B Extension

H-1B extension requests are similar to initial H-1B requests in terms of preparation and processing times. The International Center recommends that departments initiate the H-1B extension process up to eight months before an H-1B employee's current authorization is due to expire, to allow for an extension petition to be prepared and filed with USCIS at the earliest possible date of six months before the expiration of the employee's authorization. Procedurally, the process for obtaining an H-1B extension is the same as requesting the initial H-1B authorization, and departments should follow instructions for requesting an initial H-1B authorization when extending a current employee.

Continuation of Employment While Extension Is Pending

Any request to extend a current employee's H-1B authorization must be received by USCIS no later than the last day of the H-1B employee's current authorization. Once USCIS issues a receipt for the application, the employee's H-1B employment authorization can be extended for 240 days while the extension application is pending. Departments may need to coordinate an I-9 Employment Eligibility Verification extension with TSS in order to ensure that the employee's payroll is not interrupted.

Travel Outside US While Extension Is Pending

Employees should not travel outside of the US while an H-1B extension application is pending. If travel outside the US is needed for either business or personal reasons, the department and employee should contact the International Center to discuss options. In most cases, the employee must wait until the extension is approved prior to traveling outside the US. In addition, the employee may need to apply for a new H-1B entry visa prior to returning to the US to continue employment at Tufts.

Extensions Beyond the Sixth Year

Certain employees who are in the process of obtaining employment-based permanent residence may be eligible for additional one-year extensions beyond the sixth year. Employees should consult the International Center regarding extensions beyond the 6-year limit on H-1B eligibility.

USCIS can take eight months or longer to process a Form I-129 application requesting either initial H-1B authorization for a new employee or an extension of H-1B authorization for a current H-1B employee. However, USCIS also provides a premium processing option in which the review period is shortened to fifteen days, barring any unforeseen issues with the H-1B petition. The premium processing option is currently $1,410 (*the fee will increase to $1,440 on 12/2/19) and is payable via check issued to the "US Department of Homeland Security."

Fee Responsibility

In general, departments must pay the premium processing fee if expedited processing is needed to secure initial employment authorization for an employee, so that Tufts can lawfully employ the individual by the expected start of the H-1B position.

For H-1B extensions, the employee's employment authorization is extended for 240 days beyond the existing H-1B authorization date, minimizing the need for premium processing unless business-related travel becomes necessary and/or the 240-day extension period is within 30 days of expiring and USCIS has still not completed its review of the extension request.

Employees may be asked to bear the cost of premium processing if expedited processing is not needed for business reasons but only to facilitate personal or family travel. It is up to each sponsoring department to consult with the sponsored employee regarding fee responsibility.

Department Compliance Obligations for H-1B Employees

Any department employing an individual for H-1B status is required to offer the employee the job opportunity and wages specified in the original petition submitted by Tufts to USCIS. If the department is unable to maintain the employee in the position, the International Center must be notified immediately.

The International Center should also be notified in advance if any of the following situations may apply to an employee:

  • The employee takes a paid or unpaid leave of absence from work
  • The employee's duties undergo a material change (outside of normal salary progression) such as:
    • Change in the physical site or organizational location of employment
    • Addition of new duties, titles, or job descriptions to the employee's position
    • Change in FTE from full-time to part-time (or vice-versa)
    • Addition of supervisory duties to a previously non-supervisory position
    • Reduction in salary
    • Other changes that are potentially materially significant
  • The employee voluntarily departs from Tufts or is the subject of a bona fide termination

Bona Fide Termination: If the employee is subject to a bona fide termination from the position prior to expiration of the employee's H-1B authorization, the department may be required to pay for the reasonable costs of the employee's return transportation to his or her country of residence. Contact the International Center immediately in the event an employee is terminated, as there are specific steps the International Center must take in such situations to terminate the employee's H-1B authorization.

Deemed Export (Export Control) Attestations

As a condition of sponsoring an H-1B employee, the department is required to determine if the employee will have access to controlled data and technology (including equipment, instruments, software, and materials) as specified under the Export Administration Regulations (EAR) administered by the Department of Commerce, and the International Traffic in Arms Regulations (ITAR) administered by the Department of State. If so, access to such data and technology may be "deemed" an export to the employee's country of citizenship or permanent residence, requiring a license under the appropriate regulations.

Departments are required to make this determination at the time of requesting an H-1B authorization (initial or extension) for an employee, as well as implementing procedures to ensure ongoing compliance with these regulations.

For more information about export controls administration at Tufts, please contact the Office of the Vice Provost for Research (OVPR) or review the information on their export controls web site.