H-1B Status

H-1B Status & Permanent Residency Information

• H-1B: Temporary Visa for Faculty

  This classification is reserved for skilled professionals from other countries, including Canada and Mexico. As with a TN work authorization, the profession must be one authorized by U.S. Citizenship and Immigration Services (USCIS) as a "specialty occupation." H-1B status is most often used by Western Washington University academic departments for tenure-track faculty, although occasionally H-1B status is also used for non-tenure-track faculty. Unlike most other nonimmigrant classifications, H-1B status allows an employee to continue to provide temporary services while an employer is taking steps to convert the foreign national to permanent status. Thus, the H-1B classification may serve as a bridge between temporary and permanent employment.

  The petition to USCIS represents a firm commitment by the university to fully fund the beneficiary for the entire period of time requested. USCIS will hold the employer liable for the H-1B worker's return transportation costs if the worker is dismissed from employment before the end of the period of authorized stay.

  • Term of employment in most cases should be a minimum of one year and may not exceed three years. This is renewable for up to three additional years. The maximum time permitted in the H-1B classification is six years. For most non-tenure-track appointments, the H-1B authorization is in one-year increments, usually the time period of the faculty member's contract. In this case, the H-1B appointment would have to be renewed yearly, using the same process as the original H-1B application. Any periods of time in H-1B status with other U.S. employers prior to the Western Washington University appointment count toward the six-year limitation. At the end of the six years, the foreign national must leave the U.S. for at least one year before he or she is eligible to seek H-1B status for another 6 year period.
  • The employing department should start the H-1B application process up to six months before the proposed employment will begin. Ample lead time is critical. The beneficiary cannot apply for an H-1B visa until USCIS sends a notice of approval to the U.S. embassy or consulate in the beneficiary's home country. Similarly, beneficiaries presently in the U.S. applying for change of status to H-1B cannot work or receive pay for services prior to receiving authorization from USCIS. Beneficiaries previously employed in H-1B status by another institution cannot receive pay for services from the university until a new petition is submitted and USCIS issues a written notice confirming receipt of the petition.
  • After receiving the necessary documents from the hiring department, International Programs & Exchanges (IPE) submits the request for H-1B classification to USCIS on behalf of Western Washington University. The university is the "petitioner" and the faculty member whose services the university requires on a full-time, temporary basis is the "beneficiary." The beneficiary may receive salary or other compensation only from the university and not from any other employer in the United States. If the H-1B is to work for more than one employer, each employer must submit a separate H-1B petition.

  Other points to note:

  • Salary for new faculty must meet "prevailing wage" as determined by U.S. Department of Labor. The hiring department must be aware that if the new faculty member's salary does not meet prevailing wage guidelines, it may cause problems with obtaining work authorization. On request, International Programs & Exchanges can provide salary survey information regarding prevailing wage before or during processing of request to recruit.
  • An in-house job posting for 10 consecutive business days is required as part of the H-1B petition. Processing of the H-1B petition by IPE and USCIS may take 3-6 months to complete, depending on the circumstances of the case and the backlog of work at the time.
  • Travel outside the U.S.: While an application for change of status to or extension of H-1B for a beneficiary who is already in the United States is pending, departure from the United States will be deemed by USCIS an "abandonment" of the application, resulting in its denial. The new faculty member should not plan to travel abroad (even to Canada) while a change of status or extension of stay application is pending.

• Permanent Residency

  In order for an international faculty member to be considered by U.S. Citizenship and Immigration Services (USCIS) for permanent residency through employment, it is necessary for that individual to be sponsored by an employer. Western Washington University sponsors applications for permanent residency based on offers of permanent full-time (1.0 FTE) employment in academic departments at the Assistant Professor level or above. (Faculty holding "acting" or "visiting" titles do not qualify for the permanent residence process).

  The university will sponsor for permanent residence only those employees whose positions meet the USCIS definition of "permanent." That is, the position must be expected to last at least a year or more into the future, and the employee must intend to remain in the position indefinitely. Beneficiaries of the permanent residence process are to remain in 100% paid employment status while the application is pending. Any change in employment status (reduction of percentage of time, leave of absence, change in job title or duties, or termination) could result in withdrawal of the petition.

  Note that the university does not authorize outside attorneys to represent its interests in immigration matters. Only the Provost may sign a labor certification application or immigrant preference petition for which Western Washington University is the sponsoring employer.

  In most cases, application for permanent residency is a three-step process:

  1. The university files an Application for Alien Employment Certification (Form ETA-750) with the Department of Labor (DOL). A provision of the DOL regulations, called "special handling," provides streamlined processing and unique eligibility requirements for international faculty whose job responsibilities involve some actual classroom teaching. For Labor Certification the initial form must be filed with the Department of Labor no more than 18 months from the international faculty member's date of selection for a faculty position (the date of selection is the date of the hiring department's letter of agreement). The application will include a detailed report describing the competitive recruitment, a copy of at least one advertisement published in a national professional journal, an in-house job posting for 10 consecutive business days, copies of relevant appointment papers, and the foreign national's curriculum vitae, among other items.
  2. Following approval of the Application for Alien Employment Certification, the university files an Immigrant Petition for Alien Worker (Form I-140) with the USCIS. The university must show that the employee is qualified for the job, holds the appropriate degrees, and has the required experience as described in the Labor Certification. Experience gained while working at WWU cannot be considered toward fulfilling the experience requirements stated in the published advertisement.
  3. Upon approval of the immigrant petition (Form I-140), and when the employee's priority date becomes current, the employee and the employee's spouse and children are responsible for filing an Application for Adjustment of Status (Form I-485) with USCIS in the U.S. or for obtaining an immigrant visa at a U.S. consular post abroad. USCIS or the consulate reviews the applications, conducts background checks on all applicants, and finally grants the permanent resident status. The new permanent residents will then be issued their "green cards." It is highly recommended that the employee enlist the services of an immigration lawyer for this last phase of the permanent residence process.

  Note to hiring departments: It is recommended that the permanent residence process be discussed in detail with the international faculty member at the time the offer of employment is made. Though approval of the permanent residence petition is likely, the hiring department should not make any guarantee of permanent residency to any new employee. It is impossible for any employer to guarantee that its efforts to secure USCIS approval for an immigrant visa will be successful. Therefore, the hiring department can only agree that the university will sponsor the employee for residency.

  Applying for permanent residency is a detailed and time consuming process which may require 3 years or more to complete, depending on the circumstances of the case and the backlog of work at the Department of Labor and U.S. consular and immigration offices. In most instances, the faculty member is already employed at the university in temporary, nonimmigrant H-1B status. It is important to begin the permanent residency process as soon as possible after the H-1B status is approved. Failure to act within a reasonable period of time may jeopardize the employee's ability to obtain permanent residency and, therefore, to continue uninterrupted employment. If the permanent residency process is delayed too long, the employee's nonimmigrant visa classification and resulting work authorization may expire, thus requiring the international faculty member to depart the U.S.