H-1B Temporary Workers
Eligibility
H-1B visa status is employment based. The H-1B temporary worker visa is designated for individuals coming temporarily to the United States to work in a specialty occupation. A specialty occupation is defined as one that requires:
(A) theoretical and practical application of a body of highly specialized knowledge, and
(B) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.
The employer must provide documentation to prove that the job requires someone with special qualifications and that the intended employee meets those qualifications. Furthermore, the employer is required to pay a salary to the intended employee that meets a minimum set by the US Department of Labor (called a “prevailing wage). The individual’s paycheck also must be paid by the hiring entity.
The United States Citizenship and Immigration Services (USCIS) makes the final decision on whether the individual qualifies for the H-1B visa classification. The H-1B visa is employer specific. This means that a USCIS approved H-1B petition submitted by Middlebury (for a Middlebury College or the Middlebury Institute of International Studies at Monterey employee) authorizes the scholar to work only in the position specified in the petition. A scholar who has an H-1B visa approval from another employer is not automatically eligible to work at Middlebury/MIIS. An H-1B worker may work for more than one employer at the same time, but each employer must file a separate H-1B visa petition and obtain approval.
Application Process
As of 2023, Middlebury contracts with an immigration law firm to process all H-1Bs on our behalf. After an official offer of employment in writing is issued (a contract or offer letter), ISSS is notified. Then ISSS will contact the prospective employee to determine what, if any visa support services may be needed. If needed, ISSS determines if the person will need H-1B status to work. ISSS then notifies Middlebury’s General Counsel Office and they prompt the contracted immigration law firm to initiate contact with the prospective employee to gather information needed for them to prepare the H-1B petition to be submitted to USCIS. Please note the estimated time it takes to do all the required steps to prepare and file an H-1B petition with USCIS is usually at least 2 months. USCIS can take several more months to approve an H-1B petition. Legally, an H-1B petition can only be filed no more than 6 months before the intended start date of the position and/or anticipated H-1B status period.
Once the H-1B petition has been approved by USCIS, an approval notice (I-797 Approval Notice) will be sent to the law firm. The employer will give copies of the petition and the approval notice to the employee.
If the employee is not in the United States at the time of the approval, the employee is then eligible to apply for an H-1B visa at a US Embassy or Consulate, which is needed for them to travel to the U.S. to enter and be granted H-1B status.
If the employee is in another status and their petition is filed as a “change of status” from within the U.S., the employee may begin work in the H-1B status once the approval notice is received by the employer and the start date has been reached, whichever is later.
If the employee is already in H-1B status either with another employer or Middlebury, the employee can begin or continue working with Middlebury as soon as the employee has proof that USCIS received the Middlebury petition and the start date has been reached, whichever is later.
ISSS will provide additional information about the process and the law firm once a case is being initiated.
Checking In and Orientation
All new employees in H-1B status must complete a document check in and orientation with ISSS no later than 3 business days after the start of their employment or physical arrival to their location of work, whichever is later. ISSS will send an email with instructions to do the check in to the new employee around the start date of their employment.
After checking in with ISSS, the employee must go to Human Resources to complete the I-9 process and the Tax Office to submit necessary tax documents. Legally, the I-9 process must be completed within the first three days of employment.
Length of Stay
H-1B status holders are eligible for a total maximum stay of six years with no more than 3 years requested at a time. The six-year limit includes time spent on the H-1B visa with another employer. The initial H-1B petition may cover a period up to three years. Extension petitions may be made for a period up to no more than 3 years, to equal the 6 year maximum time limit.
Since this six-year limit is strictly enforced, it is important to plan accordingly. It may be possible to begin another six-year period as an H-1B status holder after the individual has spent at least one year (12 months) or more outside the United States.
Exceptions to the six-year rule: If individuals are at a certain stage in the application of legal permanent residency with USCIS, they may be eligible for an extension beyond the 6-year maximum. The attorneys will work with the individuals to determine if they are eligible for an extension beyond the 6-year maximum.
Employment
The H-1B status is employer/position specific, which means that a USCIS approved petition that was submitted by Middlebury authorizes the H-1B status holder to work only in the position specified in the petition at Middlebury. If there are any changes to the role (duties, titles, etc.), the employee should reach out to ISSS before the changes take place to ensure that ISSS is aware and can determine if the situation requires any additional filings. In some cases, the changes may need to be stalled until we obtain the appropriate approvals.
Important Reminder: An individual who has an H-1B approval from another employer is not automatically eligible to work at Middlebury in any other position. An H-1B worker may work for more than one employer at the same time, but each employer must file a separate H-1B visa petition and obtain approval before the employee can begin in the new or additional role.
Last updated 12/19/2024