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H-1B Temporary Worker Visa

(East Carolina University)


The H-1B Visa Defined

The H-1B temporary worker visa is designated for individuals coming temporarily to perform services in a specialty occupation which is defined as “an occupation which requires theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree for the specific specialization (or its equivalent in experience).”  The hiring department must provide documentation to prove that the job requires a person with special qualifications and that the foreign scholar has those qualifications.  The U.S. Citizenship and Immigration Services (UCIS) make the final decision on whether or not the individual qualifies for the H-1B classification.

The Two-Step Application Process

The H-1B visa application is a two-step process involving both the Department of Labor (DOL) and the UCIS.  Employers are required to obtain prior clearance from the Department of Labor before an H-1B visa petition may be filed with the UCIS.  Specifically, employers are required to file a Labor Condition Application (Form ETA 9035) with the Department of Labor, making certain attestations concerning the prevailing wage, working conditions, possible labor disputes and notice of filing of the position.  These regulations apply to both initial and extension H-1B applications.
   
The prevailing wage as defined by the Department of Labor is the average rate of wages paid to workers similarly employed in the area of intended employment.  Employers are considered as meeting the prevailing wage standard if their proposed wage rate is within 5 percent of the average rate of wages.  The University has chosen to use the prevailing wage determination provided by the Employment Security Commission of North Carolina in Raleigh since it is the one authoritative source not subject to challenge by the Department of Labor.

The actual wage as defined by the Department of Labor is 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.

To assist departments at East Carolina University to employ H-1B workers, we are enclosing a Prevailing Wage Request Form and an Actual Wage Form.  The Prevailing Wage Request and Actual Wage Forms should be completed by the hiring department and sent to the Office of International Affairs.  We will keep these forms among the documents required of employers by the Department of Labor.  Should there be an investigation, East Carolina University would need to produce the payroll records of those similarly employed in a particular department or laboratory.

The Office of International Affairs files all H-1B visa petitions with the U.S. Citizenship and Immigration Services (UCIS) on behalf of the University.  Individuals, who retain attorneys to file their H-1B applications, should receive prior approval from their Dean and/or Provost/Vice Chancellor.  Please do not send a request to begin the H-1B process to the Immigration Officer without the approval of the Dean and/or Provost/ Vice Chancellor.

Six –Year Length of Stay Allowed

H-1B visa holders are eligible for a total maximum stay of six years.  The initial H-1B visa may cover a period of up to three years.  It may be extended thereafter for a total of six years.  Since this six-year limit is strictly enforced, it is important to plan accordingly.  The six-year limit included time spent on the H-1B at another institution.  It may be possible to begin another six-year period as an H-1B after the individual has spent at least one year outside the United States.  Employees of higher educational institutions and their related or affiliated nonprofit entities, as well as employees of nonprofit or governmental research organizations are exempt from the numerical cap imposed by UCIS each year for H-1B visa petitions.

Income Tax Regulations

The tax regulations for H-1B visa holders are different from those for F-1 or J-1 visa holders.  The H-1B visa holder’s salary is subject to withholding of Social Security (FICA) tax as well as federal and state income taxes.  H-1B visa holders are usually taxed as “resident aliens” on their worldwide income, and may claim deductions for family members.

Changes in Employment

If any substantial changes in the H-1B visa holder’s employment occur (such as a new location, different duties, change in title, change in source or amount of salary, etc.) please notify the Immigration Officer at International Affairs.  UCIS regulations require the employer to notify UCIS of such changes.