If the Western Michigan University departmental representative or the supervisor of the foreign national has never handled H-1B immigration matters on behalf of the department, contact the WMU immigration officer in Immigration Compliance at (269) 387-5865 for a review of United States Citizenship and Immigration Services and Department of Labor regulations and processing procedures regarding this immigration status.
Basic requirements and general information
The H-1B Temporary Worker nonimmigrant classification may be granted to a foreign national who will perform services or work on a temporary basis in specialty occupations, defined as those positions requiring:
- Theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation in such fields of human endeavor as architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.
- A bachelor's or a higher degree in the specific specialty as a minimum for entry into the occupation in the United States.
H-1B status may be granted by USCIS in increments of three years or less, depending on the length of employment authorization requested by the department. H-1B applications should not be requested for a period longer than can be guaranteed by funding availability.
The maximum time permitted in H-1B status is six years, which is reduced by any prior periods of stay in any H or L classification (no longer including H-4 Dependent status). Previous periods in H or L status are not counted toward the six-year maximum if the individual was outside of the U.S. for at least 12 months following the time spent in H or L status.
An appropriate entry visa is needed when a foreign national, except Canadian citizens, enters or reenters the U.S. There are a few exceptions—contact Immigration Compliance for details. If an H-1B applicant is outside the U.S., the applicant will need time to apply for an H-1B visa at a U.S. consulate to enter the U.S. Having approval of H-1B status from USCIS does not guarantee issuance of an H-1B visa (travel document) by a U.S. consulate. The H-1B approval notice (I-797) is not a visa, nor may it be used in place of an H-1B visa to enter or reenter the U.S. H-1B employees are eligible to enter the U.S. 10 days prior to the employment start date.
In the case of H-1B extensions of the same position, the individual may continue employment up to 240 days if an extension request was submitted to USCIS prior to the end of the previous H-1B period. This 240-day rule only applies to the scholar residing in the U.S. During this time, the scholar should not leave the U.S.
H-1B status is approved for a specific job at a specific employer at a specific location. Any changes require prior consultation with Immigration Compliance and possibly a prior approval by USCIS. H-1B employees are not allowed to receive honorarium.
Positions used in the H-1B process must be paid or salaried and must meet WMU actual wage and U.S. Department of Labor prevailing wage regulations as guaranteed by a certified Labor Condition Application.
The H-1B employee and any family members should consult with Immigration Compliance prior to traveling outside the U.S. to ensure compliance with immigration regulations.
Only spouses and children under 21 may accompany the foreign national in the dependent H-4 status. H-4 Dependents may not work under any circumstances.
Persons who are or have been in J-1 or J-2 status and are subject to the two-year home-country physical presence requirement are not eligible for an H-1B visa, or change of status in the U.S. until the requirement is fulfilled or a waiver is obtained.
Export Control Requirements: All H-1B petition requests first require clearance from the WMU Export Control Committee in the WMU Office of the Vice President for Research. Contact the research office at email@example.com or (269) 387-8293 for an export control decision. For more information, visit the Office of the Vice President for Research.
Premium processing allows businesses and organizations the opportunity to obtain faster processing of an H-1B petition to meet their needs for an international employee. Specifically, USCIS will provide a 15-calendar-day processing time to those who choose to use this service. The 15-day response time does not guarantee approval and applicants may be asked to submit additional information. The $1,410 premium processing fee only expedites the final step of the H-1B processing at USCIS, not the steps with the U.S. Department of Labor. The expedited processing fee is in addition to the immigration attorney and filing fees. Contact Immigration Compliance for further details at (269) 387-5865.
The portability rule allows current H-1B status holder to begin new employment upon filing of a new petition at a new place of employment (WMU). With an official receipt notice, rather than an approval notice, from USCIS, Immigration Compliance can allow the person to begin working at WMU. If WMU's H-1B petition is later denied, employment must end immediately.
If a foreign national is dismissed from employment before the end of the authorized H-1B period for any reason, WMU departments are responsible for the reasonable costs of return transportation of the foreign national to their last place of residence. Please contact the immigration officer for this process.
H-1B application process
All H-1B applications, including amendments, extensions and concurrent employments require three steps. In the case of positions represented by a union, step one can be substituted by collective bargaining agreements. Total processing time for an H-1B petition currently averages between three and six months. It takes about six to eight weeks to obtain a prevailing wage determination from the U.S. Department of Labor. It takes about seven days (or longer if additional information is required) to obtain a certified Labor Condition Application from the U.S. Department of Labor, and approximately three months, or 15 days if premium processing is utilized, to obtain an approval from USCIS.
- The U.S. Department of Labor must certify the prevailing wage in the field for the type of position unless the position is represented by a union. The H-1B employee must be paid at or above the prevailing wage determination or the actual wage within the department or college, whichever is higher.
- The U.S. Department of Labor must certify an Labor Condition Application submitted by Immigration Compliance. On the LCA, WMU attests to the terms and conditions of employment and agrees to abide by the labor conditions listed on the LCA.
- The USCIS Regional Service Center in California must approve the H-1B petition (I-129). Because WMU is the employer and petitioner, Immigration Compliance signs the legal forms for the U.S. Department of Labor and USCIS. The individual seeking H-1B status does not sign any forms for the H-1B process, nor may an outside attorney prepare them.
The role of Immigration Compliance
- Upon receiving an H-1B request, Immigration Compliance will send confirmation of receipt of the H-1B request to the hiring department via email.
- Immigration Compliance will determine that actual wage requirements are being met based on information provided on the Actual Wage Worksheet completed by the hiring department.
- If necessary (when the position is not covered by a union contract), Immigration Compliance will submit a prevailing wage determination to the U.S. Department of Labor. It will take approximately six to eight weeks to receive a prevailing wage determination.
- Once the prevailing wage determination is returned, Immigration Compliance will ensure that the U.S. Department of Labor prevailing wage regulations are being met. If the department is offering a salary lower than the prevailing wage, Immigration Compliance will contact the department’s administrative contact person to discuss options. Please note that prevailing wages by the Department of Labor are typically variable periods of 90 days to one year only, thus it may be necessary to increase the H-1B worker’s wage at the time of an extension.
- Once the Labor Condition Application is certified, Immigration Compliance will prepare an I-129 petition and supporting documents for the H-1B petition and send the entire petition to USCIS by an express service.
- Immigration Compliance will receive the original H-1B approval notice (I-797) from USCIS, at which time the department will immediately be notified of any action needed. H-4 approval notices for dependents will be sent directly to the address listed on Form I-539 (completed by dependents).
If you are requesting an H-1B application for a prospective teaching faculty, please contact Immigration Compliance immediately to discuss a possible permanent residency application.
Visit the Forms page for the following forms.
- Certification Regarding Release of Controlled Technology or Technical Data to Foreign Persons in the U.S.
- H-1B Actual Wage Worksheet
- H-1B Request Form—Part A (to be completed by the hiring department)
- H-1B Request Form—Part B (to be completed by foreign national)
- H-1B Sample Position Description
- H-1B Temporary Application Checklist