What are the business expenses of filing an H-1B petition?

The Office of International Affairs (OIA) provides H-1B petition preparation and filing services that significantly reduce the hiring department’s expenses from what would be incurred if the same services were to be handled by an outside attorney. Still, OIA charges a processing fee to cover its costs, and U.S. Citizenship and Immigration Services (USCIS) charges multiple fees that hiring departments cannot pass on to the employee. Summary of H-1B fees

What restrictions and liabilities apply?

H-1B visas are subject to extensive USCIS and Department of Labor (DOL) regulations. An H-1B employee must be employed according to the terms described in the H-1B petition submitted to the USCIS. After the petition has been filed and approved, all changes in employment status, including change in job title, transfer of department, change in full-time status, or termination require the prior review of the OIA to ensure compliance with all H-1B regulations.

The H-1B process involves employer certification to the DOL that the worker will be paid the prevailing wage for that occupation or the actual wage at the place of employment, whichever is higher. In other words, the employer must pay either the ”going rate” for that position in the employer's geographic area or the employer's usual rate of pay for that position, whichever is higher. For this reason, it is not permissible to reduce the salary of an H-1B employee below the level reported at the time the H-1B petition is prepared.

In addition, the hiring department is liable for the cost of return transportation to the alien’s home country, even if the employee is terminated for cause or due to a loss of funding. Therefore, we recommend that hiring departments apply for H-1B status for only the time period for which funding is reasonably certain, up to the maximum of three years allowed for an initial petition or extension.

How long does it take to obtain H-1B status for an employee? When should we start the process?

A typical H-1B application takes between four to six months to complete, as follows:

Process for Filing H-1B Petition

Wherever possible, OIA prioritizes and expedites petition processing in an attempt to meet hiring department needs, but most parts of the process are beyond our control. Given the many variables and uncertainties of H-1B processing, we strongly recommend that departments initiate H-1B processing for employees six months in advance of the required start date for H-1B status whenever possible. Departments that cannot afford to wait the lengthy H-1B processing times may request USCIS premium processing for the petition.

What is premium processing?

USCIS offers a ”premium processing” service that guarantees a 15-day review of H-1B petitions when the optional $1000 premium processing fee is paid. This fee is in addition to all other H-1B fees. Summary of H-1B fees Note that premium processing expedites the USCIS review only, not the other steps of the process.

What is H-1B portability?

Persons who are offered positions at IUPUI who are already in H-1B status with another employer are eligible for immediate employment upon filing the H-1B petition with USCIS, provided the petition can be filed prior to the expiration of the prior H-1B approval. The USCIS Receipt Notice serves as proof of filing and documentation for I-9 purposes. In portability cases, premium processing is generally not of value, but departments seeking to hire employees under portability who need an approval notice (due to travel, etc.) can choose to use premium processing.

How long can an employee remain in H-1B status?

An employee can remain in H-1B status for a maximum of six years, including time worked for other employers and time spent as an H-4 dependent. In cases where an employment-based permanent resident petition has been filed by the end of the fifth year of H status and the permanent resident status is still pending at the end of the sixth year, extensions beyond the sixth year can be requested in one-year increments. Initial H-1B petitions can be filed for any time period up to three years.

Is there an H-1B quota that we need to worry about?

The U.S. Congress authorizes an annual quota of H-1B visas for U.S. employers. However, universities and affiliated non-profit entities are exempt from the quota restrictions. If the H-1B quota has been filled in any given year, university H-1B employees may have difficulty changing employment to work with an industry employer.

How do we initiate the H-1B process for a new employee?

Complete the “Request to Process H-1B Petition” and submit it to OIA. The [prospective] employee should complete the Employee Information portion of the form.

Please keep in mind that the filing of an H-1B petition is an employer-based petition, and as such it is important that the hiring unit communicate directly with OIA, and not delegate responsibility for the petition processing to the [prospective] employee. Wherever appropriate, OIA will communicate directly with the employee to complete any missing documentation, but much of the information required must be provided directly by the hiring department.

Can our program use the H-1B visa for a physician in residency or fellowship training?

The Graduate Medical Education Office recommends that the J-1 clinical physician visa be used for residency and fellowship training. However, OIA will process H-1B petitions for residents/fellows for whom the GME Office has approved the use of H-1B status.

Please bear in mind that physicians must have passed USMLE Step 3 and obtained their training license before the H-1B petition can be submitted to USCIS. Because of these requirements, H-1B employment may need to be delayed beyond June 24 or July 1.

Our department is hiring a clinical faculty member who will be employed directly by our departmental practice group in addition to IU. How is this handled?

Two H-1B petitions must be filed, one for IU and one for the practice group. OIA will handle both petitions, but all practice group forms will be prepared for signature of an appropriate official for the practice group. All fees (excepting dependent fees) will apply in duplicate. Please be sure to separate the IU salary portion from the practice group employment on the “Request to Process H-1B Petition.”

Finally, be aware that clinical petitions require that proof of Indiana licensure be submitted with the H-1B petition. Please make sure that your faculty member is applying as early as possible for the Indiana license; otherwise, submission of the H-1B petition will be delayed.