University-Sponsored H-1B Status
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H-1B status, for temporary workers, is sponsored by the University of Florida to employ foreign nationals faculty, postdoctoral and some TEAMS positions that require a bachelor’s or higher level degree. The status is available to individuals who receive an offer of employment and have the credentials to qualify for the applicable professional positions. The HRS Immigration Compliance Services Office section provides guidance to hiring departments/centers during the petition preparation process and the sponsorship period. On behalf of the University and the beneficiaries, the HRS Immigration Compliance Services office also maintains a repository of immigration related documents in compliance with federal regulations.
Characteristics of H-1B Status
- H-1B Cap exemption for universities and colleges (UF permitted to file petitions year-round)
- Offer of employment in specialty occupation that requires the incumbent to teach, lecture, conduct research or perform professional duties
- Limited to specified income from university. Note: USCIS permission required to change conditions (Ex: work location)
- Part-time employment is permitted (no minimum FTE established)
- Portability is permitted (transfer to new employer)
- Concurrent employment is permitted
- Dependents (H-4 status holders) may engage in full or part time study, but may not obtain employment. An H4 will be eligible to apply for work authorization if his or her H1B spouse: (1) has an approved Form I-140 immigrant worker petition; or (2) has received a one-year extension of H-1B status beyond the sixth year under the American Competitiveness in the Twenty-First Century Act (AC-21), based on a filed I-140 or labor certification.
Grace periods for an H-1B whose employment is terminated early will be accorded one grace period of up to 60 days during each validity period, to allow them to extend, change or otherwise maintain status or, in the H-1B context, to port to new employment.
- Foreign nationals who desire to change his or her immigration status to H-1B and who have immediate family member(s) in U.S. who possess dependent immigration status, are required to change the status of their dependents to H-4 concurrently. Therefore, the application to change status of the dependent must be filed at the same time that the prospective H-1B beneficiary’s petition is filed. The required application for this process is Form I-539.
- Dependents are not allowed to work. The change of status for the H-1B is handled through use of the I-129 petition. Form I-539 is not required for the H-1B. The I-539 form is only for dependents.
- Maximum period of stay is six years, however, requested validity periods are limited to three year periods.
- H-1B holders are eligible to enter the U.S. a maximum of 10 days prior to the approved start date of the employment period
- No grace period for remaining in the U.S. if an H-1B employee terminates or is terminated from employment before the expiration date of the status
- “No benching” rule that requires the employer to continue to pay the wage rate to the H-1B in non-productive status unless the non-productive status is due to resignation, extended illness, maternity leave, etc.
- Status provides beneficiary with dual intent: visitor w/intent to pursue permanent residence in the U.S. or intent to return to home country
H-1B status is available only to eligible and qualified foreign nationals, who will hold a position classified as a “specialty occupation”. These occupations/positions are recognized by the HRS Immigration Compliance Services Office as those that require a bachelor’s or higher level degree in a field that qualifies the applicant to perform the position’s required duties. A position that requires bachelor’s degree in any field, rather than in a field that is directly related to the duties of the position, will not meet the requirements for the category of “specialty occupations”. For TEAMS positions, the specific bachelor’s or higher level degree required for the position must be stated in the position description.
The HRS Immigration Compliance Services Office has the authority to extend the employment period of an existing H-1B beneficiary, based on federal regulations that govern non-immigrant statuses. After a Receipt Notice for a petition to extend an existing H status is issued by USCIS, the HRS Immigration Compliance Services Office is permitted to authorize the hiring department to extend employment for a period of 240 days beyond the expiration date of the current H status or until the end date of the extension period sought, if less than 240 days. This provision does not apply to cases that involve a change of immigration status to H status.
H-1B status may be extended up to a maximum period of six years. However, the maximum validity period that may be requested with each petition filing is three years.
Foreign Nationals who currently possess H-1B status and receive an offer for employment from UF may begin an employment period no earlier than the date the applicable petition is received by the USCIS, or the date indicated in the petition, if that is later. In USCIS regulations this is called “portability”.
H-1B beneficiaries are permitted to hold multiple employment appointments with USCIS permission. Foreign nationals holding H-1B status and employed by an employer other than UF may be hired by a UF department/center and work for both employers concurrently after USCIS receives a Form I-129 petition packet which requests concurrent employment permission. The Human Resource Services has the authority to authorize the employment of an H-1B beneficiary who will work simultaneously for UF and another employer, only after a USCIS receipt notice is received by ICS. A memorandum from the Human Resource Services authorizing employment will be provided to the hiring department in accordance with the federal regulations that address concurrent employment for H-1B beneficiaries.
H-1B status is available for part time employment appointments. There is no established minimum FTE requirement for sponsorship purposes; however, USCIS must be notified of all changes in FTE levels through a Form I-129 petition packet. Part time employment appointments (less than 1.00 FTE), require the University to report the rate of pay and the prevailing wage as an hourly rate on the corresponding LCA. The department must maintain time worked records on all part-time H-1B employees and submit signed copies of these records on a timecard or on an Excluded Employee’s Record form to the ICS on the first business day of each month for the previous month of employment.
Federal immigration regulations require employers of H-1B beneficiaries to submit petitions to the USCIS to amend the status for any H-1B employee whose employment experiences any “material change”. HRS Immigration Compliance Services Office views changes in the following conditions of employment to be material changes that require a petition to amend the conditions:
- a change in job title, only if the duties change from one title to another such as from research to teaching or vice versa;
- a change in FTE;
- a change in the physical location of the work site (Example: Transferring from a laboratory in Gainesville to a laboratory outside of Gainesville)
- an increase in salary (if the increase in salary warrants a question regarding a significant change in duties)
Conditions of employment are specified on the Labor Condition Application and on the Prevailing Wage Determination. If there are significant changes proposed, HRS Immigration Compliance Services Office will request a new petition to amend the current conditions of employment. An amendment would not be necessary for a change in salary that would be considered a natural or automatic increase due to length of service or meritorious award for performance of duties. There should NEVER be a decrease in the salary of an H-1B holder.
Departments/Centers who wish to accept sponsorship of a current UF sponsored H-1B beneficiary by transferring an employment appointment must obtain written permission from HRS Immigration Compliance Services Office before undertaking the transfer procedure through the Office of Human Resources. If the transfer does not involve a change in title, duties and work location (city) the department/center will not be required to submit a new petition.
Departments/centers are responsible for filing petitions to extend the status of H-1B beneficiaries. Extensions are requested with USCIS by submitting a Form I-129 petition packet.
The USCIS requires that employers report the early departure/termination of an H-1B beneficiary. The HRS Immigration Compliance Services Office is responsible for withdrawing the status of the beneficiary with the USCIS. Departments/centers must submit an End of Program Notice to ICS when an H-1B beneficiary ends his or her employment period with the University any date earlier than the approved validity period’s end date.
Foreign nationals who desire to change his or her immigration status to H-1B and who have immediate family member(s) in U.S. who possess dependent immigration status, are required to change the status of their dependents to H-4 concurrently. Therefore, the application to change status of the dependent must be filed at the same time that the prospective H-1B beneficiary’s petition is filed. The required application for this process is Form I-539.
Dependents are not allowed to work. The change of status for the H-1B is handled through use of the I-129 petition. Form I-539 is not required for the H-1B. The I-539 form is only for dependents.