Specialized Employment

This visa category is used to hire foreign professionals, as defined in the Federal Code 8 CFR. 214. 2(CH) (4). It is a work visa that can be granted for one (1) year up to a maximum of six (6) years of stay and is dependent on the worker. The latter means that the foreigner can only work for the Institution that requested the visa under the conditions specified in the application. This category applies in cases where the faculty has identified the need to hire a foreigner. In the case of a professor on a probationary appointment, it implies that the appropriate recruitment was made and established in university regulations.

It is important to note that every foreign national with an H-1B visa, like other types of visas, only has temporary legal status and their stay has a termination or expiration date. Once the academic department detects the possibility of recruiting a foreign national, before informing the candidate of the selection, it must contact the Office of Immigration Affairs (OIA) to obtain guidance regarding the prevailing wage for this particular position and the H-1B visa petition processing.  This status must be requested with sufficient time in advance of the international scholars’ beginning date (minimum of 7 months) since it requires the following procedures with federal and internal agencies:

Required procedures (new request or extension)

    1. State Prevailing Wage Determination(ETA 9141) – Defined as the average wage paid to similarly employed persons in a given geographic area (PWD). It is requested to certify the prevailing salary for the position and description requested in the H-1B (“specialty occupation”) category. The academic department completes the PWD Information Sheet and submits it to OIA. The OIA will review and prepare the form and submit it through the Federal Department of Labor (DOL) portal. This procedure is done electronically online. Processing times vary. Please see https://flag.dol.gov/processingtimes).
    2. Publication of Notice of Filing, this document states that a Labor Condition Application (ETA 9035) for an H-1B Visa has been Submitted – and must stay posted for ten business days.
    3. Labor Certification from the Federal Department of Labor – (LCA ETA-9035) Corresponds to the request for Work Authorization. Once the OIA receives the Prevailing Wage Certification from the DOL, the OIA proceeds to prepare and electronically submit the Labor Certification (ETA-9035) that will accompany the petition to classify the international scholars as H-1B nonimmigrant. [Can be done within ten days of publication of the notification, not after 30 days; can also be submitted using the online wage library, if the prevailing wage is lower than the salary offered].
    4. The academic department prepares and sends a draft letter requesting H-1B status in favor of the international scholar.
    5. USCIS Work petition for a non-immigrant alien (I-129) – The academic department must provide all information and all required evidence and documentation to prepare and submit Form I-129.  The process involves the review of all documents by the OIA. Dr. Frances Santiago, PDSO, ARO in charge of the OIA will draft a petition letter that accompanies the completed petition that is sent to the Citizenship and Immigration Services (USCIS) offices. This petition includes the Labor Certification (LCA -ETA 9035) that corresponds to the requested period. It is important to note that the labor permit or certification does not exceed the validity of the maximum period of three years. Once the petition is submitted, the approval notification (form I-797A) by USCIS is received at the OIA. The original of the I-797A form, which records the approval of the status and the period of validity thereof, is retained in the OIA a copy is sent to the international scholar, the Human Resources office, and the academic department. The international scholar will be able to apply for the H-1B visa at the US embassy in their country of residence with the I-797A, a copy of the I-129 petition and Labor Certification (ETA 9035), along with any other documents or evidence required by the DOS and consular officers at the time of requesting the entry visa with H1b classification abroad.

Documents

The determination of whether to grant H-1B status to a foreign national is not up to the UPRM but to USCIS. It may take more than six months. However, as stated above, there is Premium Processing, an expedited mechanism, that guarantees a response within 15 days (given there are no RFEs/RFIs – request for additional evidence or information). Currently, Premium Processing costs $2,805.

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