Initial information about working in the U.S. as a foreign national
When a department is considering offering a job to a foreign national, it must be verified that the potential employee has legal permission to work in the United States.
If the foreign worker has the following status, then they are ready to work.
1. U.S. Citizenship
2. Legal Permanent Residency (green card)
If they do not fall into one of these categories, then a specific visa must be applied for before employment can start.
If a visa petition needs to be processed, please contact Debra DeBode at the Office of International Programs (OIP) at 406-994-7180, firstname.lastname@example.org and she will help determine the most appropriate type of visa for your situation.
Determining an Appropriate Employment Visa Category
MSU- OIP is responsible for ensuring that Montana State University is in compliance with all U.S. immigration regulations. Although hiring departments may determine and request the employment-based visa category needed for a particular position, OIP is the final and official authority for determining appropriate visa categories for MSU positions.
Following are the steps used to determine which visa categories might be appropriate.
1. Determine the purpose, scope, and duration of the position. A few key questions to consider include:
a. What is the expected duration of the position?
b. What is the purpose of the position for international exchange or employment?
c. What is the source of funding for the position? Is it funded by MSU or by a foreign country government
Important Words of Caution To avoid mistakenly requesting a visa type that does not comply with federal regulations:
1. Do not request a particular visa type simply because the processing time is faster, the filing fees are lower, or the visa category has fewer requirements, particularly if the true purpose, scope, and duration of the position align with another visa category. For example, tenure- track and tenured teaching positions always require an H-1B visa, not a J-1 Exchange Visitor visa
2. Do not select a visa type simply based on the visa category held by the individual who held the position previously.
If the hiring department requests a visa type that does not align with the purpose, scope, or duration of the position, the MSU-OIP will notify the hiring department of the issue, and advise on the appropriate visa category needed.
H-1B Visa- Temporary Worker in Specialty Occupation
The H-1B visa allows foreign nationals to work in the United States in specialty occupations. Specialty occupations are essentially professional positions.
To be eligible for H-1B status:
1. Applicant must have a minimum of a Bachelor's degree or equivalent (or higher if job requires)
2. Applicant must have theoretical and practical application of a highly specialized body of knowledge
3. Applicant must have an offer of a professional level or specialty job.
Note: persons who hold, or have held, J-1 or J-2 status and are subject to the two-year home country residency requirement are not eligible for H-1B status until the two-year requirement is either fulfilled or waived.
1. Postdoctoral Researchers
2. Research Associate
2. Research Scientists
3. Assistant Research Professors
4. Tenure-track Assistant and Associate Professors
It is the responsibility of the employer (petitioner) to complete all required paperwork and file the petition for the prospective employee (beneficiary). The employee does not actually complete or sign any immigration forms. The visa petition will be adjudicated by the United States Citizenship and Immigration Service (USCIS). Issuance cannot be guaranteed by the OIP. All related fees are non-refundable.
MSU must file the H-1B petition; prospective employees cannot obtain H-1B visas on their own
2. If it is decided that the H-1B visa is most appropriate, then Sally O'Neill will assist you with the process.
3. The normal processing time for an H-1B visa is 4-6 months after submission. An expedite option is available for an extra fee if the visa is needed sooner.
4. Documents and information will be sent to you via e-mail.
5. Once you receive these documents, please read the instructions carefully and complete and submit all requested forms as soon as possible.
6. Checks will need to be ordered as well to cover filing and service fees.
1. Once the job is offered to you, your department will be in contact with the OIP office and if it is determined that the H-1B visa is most appropriate, then the petition process will be started.
2. Sally O'Neill will be in touch with you about your part of the petition.
How much does an H-1B petition cost? USCIS fees that employer is responsible for: 1. $325- processing fee for new and visa renewals 2. $500- anti-fraud fee for all initial H-1B cases and those under portability. (All new foreign employees at MSU on H-1B visas)
3. $1225- expedite fee-optional service 4. $1000- Office of International programs processing fee-for new and renewals.
USCIS fees that employee is responsible for:
1. $290- filing fee for change/extension of status for dependents to H-4 regardless of the number of dependents.
Cost for new H-1B visa without expedite option- $1825
Total cost using the expedite option for new H-1B visas: $3050
For H-1B visa renewals (non-expedite), the cost is $325 processing fee for USCIS and $1000 processing fee OIP- Total $1325
Even though the H-1B visa may legally be obtained for a part-time job (as long as the employee and the job meet the other criteria), it is the policy of Montana State University to only process H-1B visa applications for full-time employment unless there are extenuating circumstances. The reasons for this policy are that USCIS may ask for evidence that the part-time employee is able to support himself/herself in the U.S. and will also need very detailed records of hours worked. Keeping the detailed records of hours is problematic for the worker and the department.
Generally the employer must only post two copies of the Labor Condition Application (LCA) for 10 business days in the workplace.
No. The petition for H-1B status is filed by the prospective employer. The work permission (H-1B status) is then granted only for that specific job with that specific employer.
Note: An employee may have more than one H-1B approval at a time. This is called "concurrent employment" Thus, with H-1B status, the employee may work in two or more jobs at once, as long as each employer has obtained approval of an H-1B petition for the specific job.
In order to be employed in H-1B status, one must have both an approved job offer and visa petition for the particular job. Work may not begin until the H-1B visa is approved, unless there is another status that permits employment. For this reason, F-1 students often choose to apply for practical training authorization- Optional Practical Training (OPT) after graduation in order to begin working sooner. The application for practical training is simpler and usually faster than an H-1B application. In addition, a recent graduate does not need a job offer in order to apply for OPT. If an employer chooses to file an H-1B petition for an employee, please note that it must be filed AND APPROVED prior to the expiration of OPT work authorization.
An employer will inform the USCIS about the duration of employment. The USCIS will normally grant H-1B status for the requested period of time, but no longer than three years at a time and (in general) no longer than six years total.
If the job ends earlier than expected, may the H-1B worker still remain in the U.S.? No. If the job ends before the end of the H-1B petition approval period, the employer must report this to the USCIS and the employee must leave the U.S. or obtain another visa status. If the employer terminates the job sooner than the ending date given by the USCIS, the employer must pay the expenses of return travel to the home country if the employee chooses to return. At this time there is no grace period for an H-1B holder. At the point that the job ends for any reason, the immediate departure from the U.S. is required. The H-1B visa is job and location specific which means that when the job ends, the visa ends even if there is time left on the visa.
If there are any substantial changes in the job such as a new job title, changes in required qualifications, significant change in job duties, new location, etc, then the employer must file an H-1B amendment petition.
The Office of International Programs must be notified if there are any changes to employment-such as:
1. Increase or decrease in hours
2. Changing departments or labs
3. Change of title and responsibility such as from post-doc to professor
4. Termination of employment for any reason
5. Change in personal status such as marriage leading to a green card
If the employee wishes to change jobs to a new organization, the prospective employer must file an entirely new H-1B petition. This must be done prior to the expiration of the first H-1B, or prior to terminating current employment, whichever comes first. In most cases, having one H-1B petition approved will not make it any easier to get a second approval.
Note: "Portability"- According to immigration law which went into effect October 17, 2000, the employee may begin working as soon as the new employer files the H-1B petition with the USCIS. There is no need to wait for the petition to be approved. This is only true for change of H-1B employer if the employee remains in the U.S. For change of STATUS to H-1B, the employee must wait for the approval notice.
How long does it take to get H-1B status? OIP recommends beginning the visa application process six months prior to the planned start date for the position. Using regular processing and once filed, the petition will take up to four months for USCIS to adjudicate. In addition it will take one month for OIP to prepare the paperwork.
What is Premium Processing? The USCIS offers an expedited service for certain employment-based petitions including the H-1B. Once a petition is submitted to the service center, the USCIS guarantees a response within 15 calendar days. The current USCIS fee for premium processing is $1225.
What about dependents? If employee has been granted H-1B status, a spouse and children (under 21) will normally be eligible for H-4 status. If the employee and dependents are in the U.S. in legal status and if the employer is requesting that a status be changed to H-1B, the dependents may apply for a change to H-4 status. The spouse and child should complete and sign Form I-539 and submit it with the employer's petition. The I-539 should be signed by the primary dependent and not by the employee, unless the oldest dependent is a minor child. All signatures must be original. (faxed or scanned versions not accepted)
If the employee's dependents are outside the U.S., the employer does not need to include any information about them in the petition. After the petition has been approved, they may apply for H-4 visas at a U.S. Consulate. In addition to the items mentioned above for an H-1B application, they should present a marriage certificate (for spouse) or birth certificate (for children). Always check on the consulate website for additional requirements.
Note: A person with H-4 status may not be employed in the U.S.
If the position is professional level and the employee has a degree in a related field, the chances are excellent that the petition will be approved. There are sometimes delays if the USCIS has questions. This may result in a "request for evidence" (RFE). OIP will assist the department and employee deal with this situation if it occurs.
Note: MSU and other universities may file for an unlimited number of H-1B visas, but private companies are limited by a national "cap" on H-1B visas that can be issued each year. Individuals who transfer from an exempt institution (like MSU) to a non-exempt employer, will become subject to the cap.
If an individual is currently out of status, note that he/she may not change to H-1B status in the U.S. The individual will be required to return to the home country to apply for a visa after the H-1B petition is approved.
Advantages of the H-1B visa:
1. Dual intent- can lead to permanent residency. Click here for information on paths to green card through MSU
2. Portability- current H-1B visa holders can apply for other university employment and start work there as soon as the new petition is filed.
3. Universities are exempt from the H-1B visa cap 4. The wage is regulated by the Department of Labor (DOL)- (protects the foreign worker)
Disadvantages of the H-1B visa:
1. The wage is regulated by the DOL- (employer must comply with the wage)
2. The H-4 dependents of the H-1B cannot work 3. The processing fees are high
As stated in the NAFSA advisor manual- "
”Offering an "honorarium" to an individual invited to campus is a long-standing tradition in academe. Until ACWIA was passed, however, INS and DOS had traditionally characterized honorarium payments as "compensation for services," and therefore prohibited such payments unless the alien had employment authorization, or where it could be shown that the amount of the honorarium did not exceed an amount needed for reimbursement of expenses".
Immigration laws prohibit the payment for services by an employer to an H1B sponsored by another institution. Please be advised that accepting payment for services from an institution which is not your sponsor can put you in violation of your visa.
H1-B, E3, TN and O-1 visa holders may receive an honorarium in the form of reimbursement for travel and/or incidental expenses only.
F-1: F-1 students are usually eligible for 12 months of practical training after (and sometimes before) graduation. F-1 visa holders who earned a degree in a STEM (science, technology, engineering, math) field can be permitted to work for up to 24 months in their field, as long as the employer participates in the E-Verify program. MSU is currently not a participant in this program.
J-1: J-1 students are sometimes eligible for a period of academic training. Those who complete a doctoral program may work for up to 36 months in a post-doctoral research position with permission from the J-1 visa program sponsor.
A J-1 scholar may be employed as a non-tenure track teacher or researcher at his/her host institution, usually a university or research laboratory. The J-1 scholar visa is to be used for exchange visitors coming from their home countries and returning to their home countries. The scholar may be subject to Section 212 (e) - Foreign Residence Requirement.
L-1: Used by employees of a multinational company who are temporarily transferred to the U.S. This status is not usually available to a person already in the U.S.
E-(1 or 2): Person employed by an international (foreign-owned) company in the U.S. where the treaty allows for E visas.
E-3: The E-3 classification applies only to nationals of Australia. Employee must be coming to the United States solely to perform services in a specialty occupation.
O-1: Used by persons of extraordinary ability.
P-(1, 2 , or 3): Used by performing artists and athletes.
TN:(NAFTA Treaty) This status can be used by professional employees from Canada and Mexico and is similar to H-1B. However, there is no requirement for the employer to pay or to document the prevailing wage, and the application procedure is much faster than an H-1B. The occupations covered are restricted to those allowed under NAFTA. The duration of three years is renewable. The TN visa cannot lead to the "green card" as it does not have dual intent.
Note: Mexican nationals need to apply for the H-1B visa stamp in the passport while Canadian citizens are exempt from the visa stamp requirement.
How should I apply for TN status if I am a Canadian citizen?
Present the following documents to the Trade NAFTA Officer at the United States' USCIS Port of Entry:
1. Proof of qualifying employment offer
2. Proof of relevant credentials
3. Proof of citizenship
4. Filing fee of US $50
(always check on fee updates and further processing details at www.uscis.gov)
For more information please contact Sally O'Neill at OIP:
Office of International Programs
Montana State University
400 Culbertson Hall
Bozeman, MT 59717