H-1B Visa – Temporary Worker

H-1B status allows the University of Florida hiring departments to sponsor an international employee to obtain employment authorization to work in the U.S. and for the University of Florida. As a dual intent status, an international employee is granted up to a total of six years of employment authorization, three years at a time, to work in the U.S., and is eligible to apply for permanent residency. There are limited circumstances that will allow an international employee to maintain H-1B status past the 6-year limit such as if they are in a certain stage of permanent residency (“Green Card”) processing.

View the H-1B Visa Petition Roadmap

As a higher education institution, University of Florida is exempt from H-1B Cap, so hiring departments can apply for H-1B petitions all year round. All petitions for H-1B status must be initiated by the hiring department and filed with UF Immigration Compliance Services nine months prior to the employee’s effective date.

For any additional questions, please email ICS at HR-ICS@ufl.edu 

Eligibility

H-1B status is available only to eligible and qualified international employees who will hold a position classified as a “specialty occupation.” There is no minimum FTE for to be considered for an H-1B sponsorship.

Requirements for the H-1B visa are:

• The job offered must require a minimum of a bachelor’s degree (or its foreign equivalent)
• The candidate must possess this degree in a specialized field or hold the equivalent.

Positions that do not qualify for H-1B sponsorship:

• If the minimum qualifications for a position state “or any equivalent combination of experience/training/education” in lieu of bachelor’s degree
• A position that requires a bachelor’s degree in any field, rather than in a field that is directly related to the duties of the position.

Individuals who do not qualify for H-1B sponsorship:

• Those who are subject to the 212(e) Two-Year Home Residency Requirement based on their current or prior J-1/J-2 status until they have either fulfilled the requirement or obtained a waiver through the Department of State and USCIS.
• Those who have already used the six-year limit on H-1B status and have not departed the U.S. for at least 365 days.

UF will consider H-1B sponsorship for Post-Doctoral candidates on a case-by-case basis. Hiring department should consider a J-1 visa with the UF International Center first. A Post-Doctoral title may be considered unsuitable for an H-1B due to the high costs associated with filing it and the on-going Prevailing Wage Determination issues with the Department of Labor. UF policy dictates a four-year term in a Post-Doctoral title and the H-1B is filed in three-year increments.

Please reach out to ICS regarding any potential Post-Doctoral international employee hires.

If the department has any questions or concerns about a potential new hire, please reach out to ICS with the following documents and information to determine eligibility:

Position title/duties

• Proposed salary
• Proposed start date
• International employees’ current status & copies of current/past visa documents

Types of Cases

Change of Status

If an international employee is currently in the US in a valid nonimmigrant status (H-4, J-1, J-2, F-1, F-2, O-1, etc., but NOT B-1/B-2) the status can be changed to H-1B. The international employee can begin working on H-1B status once the department has the original USCIS approval notice in hand and the start date as occurred.

International employees currently working at UF under another status which allows them to work (J-1 or F-1 OPT) can continue to work under that status until the H-1B status is approved and the start date is effective or that other status ends, whichever occurs FIRST. If the petition is submitted to USCIS during the F-1 or J-1 grace period, the international employee is eligible to remain in the US but not eligible to work or volunteer.

Certain Change of Status requests from current J status holders will require the international employee to obtain a waiver of the 212(e) Two-Year Home Residency Requirement through the Department of State and USCIS or for the international employee to have fulfilled the two-year requirement in their home country.

Not all J status holders are subject to the Two-Year Home Residency Requirement.

Extension

UF is permitted to apply for H-1B status for international employees for periods of up to 3 years initially. An extension can be requested through additional petitions until the total time in H-1B status reaches 6 years. An extension request may be filed with USCIS up to 6 months prior to the expiration date.

The desired start date will be the day after the previous H-1B expires. The employee may continue working for up to 240-days after the current H-1B expires and reside in the US as long as the H-1B extension was filed BEFORE the current H-1B expiration. The 240-day period commences on the day following the expiration of the previous USCIS H-1B approval. If the petition were to be denied within that 240-day period, the employment authorization would end on that day.

H-1B status can be extended past the 6-year limit under certain circumstances with a pending Permanent Residence (“Green Card”) application.

Amendment

Departments must consult with ICS prior to changing any terms of the international employee’s H-1B employment (i.e., when there is a change in the employee’s job title, duties, worksite location, FTE, etc.) for existing employees to determine whether an amended petition is required.

If an amendment is required, the employee can begin the new working conditions once the petition is submitted to USCIS and the requested start date has occurred.

Change of Employer/Transfer (Portability)

H-1B status is employer specific. If a hiring department wishes to sponsor an individual who is already in the U.S. in H-1B status through another employer, UF must file a petition for change of employer with USCIS. The international employee must maintain current H-1B status in order to be eligible for an H-1B transfer.

There is a 60-day grace period for those whose employment is terminated prior to their H-1B expiration date, which will enable them to extend their status, change or otherwise maintain status or prepare to depart the United States. We would advise there be no gap in employment to be safe.

The 60-day grace period can be less depending on the H-1Bexpiration date. It is a 60-day grace period OR the date the H-1B actually expires – whichever comes first.

Per UF policy, the international employee can only begin employment at UF once we receive the electronic “USCIS Email Approval Notification” from Fragomen AND the start date occurs.

Consular Processing

If the international employee is abroad, this would be a case for consular processing. With the original H-1B approval notice, the international employee will apply for the H-1B visa stamp at the US Consulate/Embassy abroad. The international employee will not be in valid H-1B status until entering the US and presenting the original H-1B approval notice (Form I-797) and passport containing the H-1B visa stamp. International employees may enter the US as early as 10 days prior to the approved start date.

Upon entry, the international employee must provide the department a copy of their H-1B visa stamp and their electronic I-94. The department must forward copies of these documents to ICS.

POE (Port of Entry)/PFI (Pre-Flight Inspection)

Typically reserved for Canadian Citizens. Canadians are not issued H-1B visa stamps in their passports. With the original approval notice, the international employee will be able to seek entry into the US either via land or air.

Upon entry, the international employee must provide the department a copy of their H-1B entry stamp and their electronic I-94. The department must forward copies of these documents to ICS.

Concurrent filing

H-1B status is employer specific. An international employee may have multiple H-1B statuses at any one time. Each employer MUST petition for the H-1B status.

Process & Timeline

Step 1: Department completes and submits case initiation in Fragomen Portal

The department will be responsible for gathering all the information and documentation.  Please see the Instruction Guide for Initiating H-1B Visa Petition (ufl.edu) and initiating the case in the Fragomen Connect Portal.

Step 2: ICS Review and analysis of case initiation questionnaire (1 to 2 weeks)

ICS will perform a review of the information and documentation provided. We will reach out to the department with any questions. Once the application is complete, ICS approves and submits the questionnaire to Fragomen.

Step 3: Prevailing Wage Determination (5+ months)

The Department of Labor (DOL) regulations require UF to pay an international employee the Prevailing Wage or Actual wage, whichever one is the higher salary.

For Change of Status, Change of Employer and Consular Processing cases, with start dates less than 8 months from the time of case initiation, may be required to complete the Non-Certified PW Acknowledgment Form, also known as the OES Memo. (Link to OES Memo)

Step 4: LCA Posting (2 weeks)

In conjunction with Fragomen, ICS will post the “Notice of Filing of a Labor Condition Application”. The LCA must be posted for 10 consecutive business days (excluding weekends, holidays, or days UF is closed)

ICS will provide the Posting Notice to the Department to physically post at any non-UF sites. The Department will have to provide a copy of the posting to ICS after the posting period.

This step may take longer since Fragomen does prepare applications based on start date/expiration date.

Step 5: LCA filed with Department of Labor (1 week)

Once ICS verifies the Notice of Filing was posted, Fragomen will submit the LCA to the Department of Labor for official certification.

Step 6: Preparation of the H-1B Petition (2 to 3 weeks)

Once the LCA is certified, Fragomen will prepare the USCIS filing to Petition for a Nonimmigrant Worker and supporting documents. ICS reviews and signs the petition and returns to Fragomen for filing.

This step may take longer since Fragomen does prepare applications based on start date/expiration date.

Step 7: USCIS Processes H-1B (15 days to 12 months)

The current processing times for H-1B petitions 8 to 12 months. USCIS does post processing time information on their website, but that may not always be the most up to date information.

Under “Premium Processing,” USCIS will adjudicate (i.e., approve, deny, or issue a Request for Evidence (“RFE”) the petition within 15 calendar days. 

Step 8: Approval Notice (1 to 2 weeks)

The original approval notices are sent from USCIS to Fragomen. Fragomen notifies ICS when they receive the notice as well as forwards the original notice to our office. Once ICS receives the approval notices, we email the department with information on collecting the original notice.

Additional time should be considered for cases involving an international employee currently abroad (consular processing cases) or traveling abroad requiring a new visa, including processes with the Department of State for visa appointments, visa interviews, and additional administrative processing. The original approval notice for consular processing cases will be sent directly to the international employee.

Fees

USCIS filing fees:

• H-1B Filing Fee – required
• Fraud Prevention and Detection Fee – required for new to UF H-1B petitions (NOT required for Extensions/Amendments)
• Premium Processing (PPS) fee – required for new to UF H-1B petitions
  • Why PPS? Under Premium Processing, USCIS will adjudicate the petition within 15 days of them receipting the petition. Adjudication can be one of 3 actions: approval, denial, or request for evidence (RFE). In the event of an RFE, the 15-day count starts over after the response to the RFE is received.

Fragomen legal fees:

• $1,000 Fragomen legal fee for case processing
• Request for Evidence response fees: determined at time of RFE
• Additional Rush fees – cases submitted with less than a certain number of days until the requested start date are subject to additional Rush fees. Rush fees are an employer fee. Cases requiring Rush fees should be discussed with ICS prior to initiation submission.
• Additional service provided – if needed, Fragomen will advance the filing fees for the department. There is an additional $100.00 processing fee if you use this service.

For more detailed information on fees, please refer to the “ICS Fees and Rush Chart” link under the Resources section on our website.

How long can an international employee be in an H-1B status?

Generally, individuals are entitled to a maximum of six years in H-1B status. The H-1B status is initially valid for 3 years and can be extended for an additional 3 years.

Beyond 6 year H-1B limitation: There are limited circumstances that will allow an international employee to maintain H-1B status past the 6-year limit such as if they are in a certain stage of permanent residency (“Green Card”) processing.

Recapture of time. If an international employee has spent periods of time abroad during the validity of their H-1B petition, they may be able to “recapture” that time and extend the duration of their H-1B stay for a period equal to the time the international employee spent outside the U.S. for a maximum of 6 years in H-1B status.

How soon after filing an H-1B petition can an international employee start to work?

• Change of Status – The international employee can begin working on H-1B status once the department has the original USCIS approval notice in hand and the start date has occurred. If the international employee is currently working at UF under another status (J-1 or F-1 OPT) they can continue to work under that status until the H-1B status is approved and the start date is effective or that other status ends, whichever occurs FIRST. If the petition is submitted to USCIS during the F-1 or J-1 grace period, the international employee is eligible to remain in the US but not eligible to work or volunteer.
• Change of Employer – If the international employee is already in H-1B status with another employer, UF policy states the international employee may begin to work once the department has received the electronic approval email from USCIS. It is not advisable for the international employee to leave their prior employment too soon.
• Consulate Processing – If the international employee is outside the United States, they may not begin their employment until they have obtained an H-1B visa stamp in their passport and they have been admitted to the U.S. in H-1B status.
• Amendment – If the international employee is changing employment conditions (title, duties, full time equivalency, worksite in a different county), they may begin work once Fragomen submits the petition to USCIS, and the requested start date has occurred.

What happens if the change of status approval notice is not received before the current status expires?

If the change of status approval notice is not received before the current status expires, the international employee must stop working. They need to be placed in “No Pay” status. The international employee can utilize vacation time as this was earned before being placed in “No Pay” status

What if the international employee’s  job responsibilities change or they have to switch from one job location to another?

If the international employee has a material change in job responsibilities (including promotions, FTE, etc.) and/or there is a change in location that is outside of their geographical area (i.e., city or metropolitan statistical area), UF will need to file an amended H-1B petition on the international employee’s behalf.  Any change in job location or job duties should be brought to the attention of their department liaison, prior to accepting the change in employment. The amendment will need to be filed with USCIS prior to any changes in employment. The international employee can begin the new working conditions once the petition is submitted to USCIS and the requested start date has occurred.

How is H-1B status extended?

H-1B extensions can be filed with USCIS up to 6 months before the expiration date of the current H-1B status. ICS will need additional time to review and process the application.  If an extension application to continue an international employee’s current H-1B employment is filed prior to expiration of the current authorized stay, they may be eligible for continuous work authorization for up to 240 days while the application is pending.

Can an international employee continue working if their H-1B Extension has not been approved by the time their current H-1B expires?

If an extension application to continue the international employee’s current H-1B employment is filed prior to expiration of the current authorized stay, they may be eligible for continuous work authorization for up to 240 days while the application is pending.

What happens if the extension is not approved before the 240 day automatic extension runs?

If the extension is not approved before the 240-day automatic extension runs, the international employee must stop working until the extension is approved. They need to be placed in “No Pay” status. The international employee can utilize vacation time as this was earned before being placed in “No Pay” status

Or, the department may upgrade the case to premium processing. The upgrade should be done if it has been 210 days beyond the H-1B expiration. Fragomen will need time to prepare the premium processing form and submit it to USCIS. There is an additional Fragomen legal fee to upgrade the case to premium processing.

How does an international employee or department check the status of a case after it has been filed with USCIS?

USCIS allows you to check the status of a case by using their online Case Status tool. Please utilize this link to track the status of your application : Case Status Online – Case Status Search (uscis.gov)

When will the international employee receive their I-797 Approval Notice?

Once USCIS approves the international employee’s petition, they will forward the I-797 Approval Notice to Fragomen. Please note that it can take anywhere from several days to several weeks for USCIS to mail the approval notice to Fragomen. Once Fragomen receives the approval notice, they will prepare an approval packet and send it to ICS via FedEx. Once received, ICS will notify the department to pick up the original approval notice. The department will then forward the approval notice to the international employee.

When should the department request the filing fee checks?

Since checks are only valid for 6 months, please request the checks no earlier than 6 months prior to the desired start date.

Who are the filing fee checks made out to?

The filing fee checks should be made payable to: U.S. Department of Homeland Security Citizenship and Immigration Services 24000 Avila RD RM 2302 Laguna Niguel, CA 92677 United States

An H-1B extension petition is filed under regular processing. Can the international employee travel internationally?

After the current H-1B expiration date the international employee can only travel abroad/re-enter the U.S. after they receive the H-1B Extension approval notice. UF may file the H-1B Extension under Regular Filing because for extension cases premium processing is not needed. International employees can continue employment up to 240 days while their extension petition is pending. It takes at least 8 months for Fragomen to receive the approval notice from USCIS under regular processing. In addition, the H-1B Petition can be filed no earlier than 6 months before the requested start date.

There is a possibility of upgrading the petition to include Premium Processing. The department must pay this fee ($2,500) if it is needed for employment purposes (work travel), otherwise the international employee can pay this fee for personal reasons. There would be legal fees for upgrading the petition as well.

Can an international employee get paid for outside conferences and/or complete work outside of their H-1B?

An H-1B employee is not permitted to accept payment for any activity or services rendered outside of the approved H-1B. They are permitted to receive reimbursement for travel expenses/living expenses associated with an activity. The international employee should keep a list detailing the expenses and how the money was applied in case they must prove 100% went towards travel and associated expenses related to this outside activity.

Can an international employee pursue green card while on H-1B?

Yes, H-1B status allows for dual intent and an international employee can apply for permanent residency while maintaining H-1B status.

How long does an international employee have to wait in order to be sponsored for permanent residency?

It is up to each individual department to determine how long an international employee has to be employed by UF before they will consider sponsorship for permanent residency.

When is the latest permanent residency can be sponsored?

To be eligible for an extension of H-1B status beyond the 6 years, the first step of the permanent residency filing must be submitted with the appropriate agency, either the Department of Labor or USCIS, by the end of the 5th year in H-1B status. For example, if the international employee 6 years of H-1B expires September 30, 2023, the ETA 9089 or I-140 must be submitted to the Department of Labor or USCIS by September 29, 2022 at the latest. Please be aware that it can take up to a year to get to the point of filing the first step with either the Department of Labor or USCIS.

Can an H-4 dependent work?

Generally, H-4 dependents are not eligible for work authorization.  However, an H-4 nonimmigrant may be eligible to apply for and work pursuant to an Employment Authorization Document (EAD) if his or her H-1B spouse either (1) has an approved Form I-140 immigrant worker petition; or (2) has received a one-year extension of H-1B status beyond the statutory six-year maximum based on a filed Form I-140 or labor certification application.

Can an H-4 dependent volunteer?

It depends. An H-4 cannot volunteer for a for-profit company. An H-4 can volunteer for a nonprofit or local organization where everybody would in a similar position of volunteering and as long as the work would not otherwise be paid. H-4s cannot volunteer at UF.

Can an H-4 dependent attend school?

Yes, H-4 dependents may attend school.

How long can a dependent child be in H-4 status?

An unmarried child can be in H-4 status as long as they are under the age of 21 and their parent is maintaining their H-1B status.