The University of Wisconsin-La Crosse sponsors foreign nationals in tenure-track faculty positions for their employment based work authorization visa (H-1B) and employment based immigrant petition (I-140).
An H-1B visa is granted to a non-immigrant individual to perform work in a specialty occupation. As defined by the United States Citizenship and Immigration Service (USCIS), a specialty occupation requires the theoretical and practical application of a body of specialized knowledge along with a bachelor’s degree or its equivalent. H-1B sponsorship by a United States employer is required in order to obtain an H-1B petition. UW-La Crosse only sponsors foreign nationals in tenure-track faculty positions for their employment based work authorization visa (H-1B). The USCIS website provides detailed information on H-1B Specialty Occupation visas. UW-La Crosse is a cap-exempt institution and not limited by the annual numerical limit “cap” on available visas.
If the foreign national is ABD (PhD not conferred) and on an F1 student visa, it is expected that the foreign national will acquire their OPT/CPT to extend their F1 visa. The OPT will provide work authorization for the first year of employment at UWL. The H-1B visa process will begin after a doctorate degree has been conferred and the foreign national receives an appointment document with an Assistant Professor title.
The H-1B application process involves several steps outline below:
- Prevailing Wage Determination
- The Immigration and Nationality Act (INA) requires that the hiring of a foreign worker will not adversely affect the wages and working conditions of U.S. workers comparably employed.
- To comply with the statute, the US Department of Labor’s regulations require that the wages offered to a foreign worker must be the prevailing wage rate for the occupational classification in the area of employment.
- UW-La Crosse utilizes the Online Wage Library for prevailing wage determinations for the H-1B process. This is completed by the Human Resources office.
- There is no charge to file for a prevailing wage.
- Detailed information can be found on the US Department of Labor’s Prevailing Wage website.
- Labor Condition Application (LCA)
- Labor condition application (LCA), Form ETA 9035, is a document that a prospective H-1B employer files with Employment and Training Administration (ETA) when it seeks to employ non-immigrant workers.
- In this document, the employer attests to standards to which it will adhere. Human Resources files the LCA, Form ETA-9035, electronically, once the Prevailing Wage has been determined.
- Once filed, the LCA will be posted in the hiring department (where announcements are normally posted) for 10 business days. After 10 business days, the chair of the department, or the ADA, will sign an attestation confirming that the LCA was posted as required.
- There is not a filing fee for the Labor Condition Application.
- Detailed information can be found on the US Department of Labor’s website.
- Export Control Interview
- Educational institutions employing foreign nationals must have compliance processes in place that enable cognizant campus offices, including potentially research compliance, human resources, legal, and others, to work together to determine whether a deemed export license is required under U.S. export control laws.
- UW-La Crosse’s Risk Manager will contact the chair of the hiring department regarding completion of an export control interview.
- The interview takes approximately 15 minutes to ½ hour and will be conducted over the phone, or in person.
- The chair will be asked questions about the work the foreign national will perform and asked to sign an Export Control Certification document after the interview is complete.
- Detailed information can be found on the Form I-129 Part 6 FAQ on the USCIS website.
- Form I-129 Petition for Non-Immigrant Worker
- Form I-129, titled Petition for a Non-immigrant Worker, is a petition issued by U.S. Citizenship and Immigration Services (USCIS) that is submitted by a U.S. employer who wishes to sponsor a foreign national for employment in the United States. It is the paperwork that requests H-1B visa status for the foreign national.
- Human Resources will prepare the I-129 petition, using information provided by the foreign national via the H-1B beneficiary form.
- The hiring department is responsible for the I-129 petition fees, which total $825.
- If premium processing is necessary to speed up the 4-6 month processing time, the department will be responsible for an additional $1225 fee.
- Detailed information can be found on the USCIS I-129 website.
- The taxation of income for H-1B employees depends on whether they are categorized as either non-resident aliens or resident aliens for tax purposes.
- A non-resident alien for tax purposes is only taxed on income from the United States, while a resident alien for tax purposes is taxed on income from both inside and outside the United States.
- The classification is determined based on the IRS "substantial presence test".
- UW-La Crosse utilizes the GLACIER Online Tax Compliance System to manage tax liability and compliance for our H-1B employees.
Information regarding traveling outside the United States while on an H-1B visa is provided in this travel document.
- A change in address must be reported immediately to the USCIS office.
- Address updates can be completed on-line through the USCIS Change of Address webpage.
- Notification of a change of address must also be reported to the UWL Human Resources office.
- UWL is required to notify the USCIS immediately upon termination of an H-1B worker.
- The employee must leave the United States on the final day of employment, unless the terminated employee has secured H-1B employment through the sponsorship of another U.S. employer or changes immigration status.
The purpose of the ETA-9089 Labor Certification (PERM) is to ensure that qualified US workers have been given the opportunity to apply for the position, that the foreign national hired was more qualified than all of the U.S. workers who applied, and that the wage being offered meets the prevailing wage for the particular occupation. The Labor Certification Application must be filed within 18 months of the date of the initial offer letter; otherwise, a completely new ‘market research’ with national advertising and interviews must be conducted before we can file for Labor Certification. There is not a fee for filing the Labor Certification Application.
There are several steps in the PERM process:
- Prevailing Wage determination
- Electronically file request for prevailing wage determination
- 60 day processing time
- Can proceed with posting of Notice to File Labor Certification Application while prevailing wage is being determined by U.S. Department of Labor (DOL)
- Post the Notice to File Labor Certification Application
- 10 business day compliance posting in HR and academic department
- HR will prepare notice and forward to academic department with posting instructions, as well as an attestation to complete after posting requirement is met.
- 30 Day wait to file Labor Certification Application
- Must wait 30 days after the day following the last day of the 10 business day compliance posting requirement before filing the ETA-9089 Labor Certification Application
- HR works with foreign national and hiring academic department to gather information to complete the Labor Certification Application.
- Extensive documentation of the recruitment process
- Detailed information on foreign national’s previous employment
- Electronically file the Labor Certification Application with the DOL. Current estimated processing time is 10-12 months, if unaudited. The DOL is auditing approximately 40% of PERMs. If selected for an audit, processing time can be delayed for 1-2 years.
- Upon certification, the foreign national and the Director of Human Resources will both sign the Labor Certification Application, which will be submitted to the USCIS in the next step (filing of form I-140).
An I-140 petition is the second step in the employment based permanent residency process. Once the Labor Certification Application is approved, an employer files the I-140 on a foreign national employee’s behalf to obtain a visa number and priority date to allow the foreign national to apply for change of status to a permanent resident (aka green card holder) via Form I-485 Adjustment of Status petition. The hiring department is responsible for the $580 filing fee. Processing time is currently estimated at three to four months. For a $1225 fee, premium processing can be added, which will reduce the processing time to 15 business days.
- HR prepares and files Form I-140 Immigrant Petition
- Updated CV will be requested from foreign national
- Letter of Support requested from academic department (draft provided)
- All UW-La Crosse I-140 petitions will be assigned preference category EB2, or Employment Based, Second Preference (Members of the Professions Holding Advanced Degrees).
- Approval of an I-140 does not confer any change of status. The foreign national’s visa status will remain the same as prior to approval of the I-140 petition.
Form I-485 Application to Register Permanent Residence or Adjust Status is the final stage in the permanent residency process. Once the I-485 petition is approved, the applicant becomes a lawful permanent resident of the US. The USCIS website provides detailed information on the I-485 petition.
The foreign national prepares the I-485 petition and pays for all fees associated with its filing.
- UW-La Crosse can give only very general information and assistance on the I-485 application.
- This application is the foreign national’s petition, not the University’s.
- In most cases, foreign nationals can complete the forms on their own, but may wish to consult with an immigration attorney, particularly if their situation is complex.
- UWL cannot make recommendations on an immigration attorney.
- Under state law, outside attorneys cannot represent state institutions, so an attorney could assist with the I-485, but not the I-140.
- The I-485 can be filed concurrently with the I-140 petition, or after the I-140s notice of receipt is received, or after the I-140 has been approved.
- The benefits of filing concurrently are that family members may apply for an Employment Authorization Document (EAD) on form I-765 so that they may work while the I-485 is pending. An EAD card will also allow a foreign national to be paid for activities outside of their primary position at the university, such as lecturing and consulting. However, using the EAD for outside employment cancels the H-1B status, so caution should be used.
- There could be some negative impact from filing concurrently. If the I-140 is denied, the I-485 is immediately denied and all filing fees and the cost of the medical exam will be lost. Also, if the EAD is used to work outside of UWL, employment authorization will be terminated immediately and it might be necessary for the foreign national to leave the United States.
- Foreign nationals from India or China will not be able to file the I-485 until a visa number is available.
- Currently, there are not any visa numbers available for India or China; however, we want to proceed with Steps 1 and 2 in order to establish your Priority Date for a visa number.
- Your Priority Date puts you in the queue for a visa number when they become available once again.
- We will continue to extend your H-1B visa in three year increments until visa numbers for India or China are available and your Priority Date allows you to file your I-485.
|Shelle Gholson Profile of Shelle Gholson|