H-1B Status
Before the department proceeds with the H-1B petition, we recommend consulting with International Programs on prevailing wage requirement for the position. Once the prevailing wage is confirmed, the department and employee should go through and submit all completed documentation including the Supplemental Export Control Certification for Form I-129 below for a completed application packet.
Please note that a complete application packet (including fees) from the department is essential to begin the process and it can take up to three weeks for our office to prepare the petition to submit to USCIS.
Please contact International Programs at 208-885-8984 or ipo@uidaho.edu for any questions that you may have with this process.
We have also included a Word document for the Employers Letter that must accompany the application packet for easy editing for the position.
International Services provides general advice on H-1B requirements and procedures, reviews submitted documentation, secures prevailing wage, Labor Condition Application and prepares and files I-129 petition with the USCIS Service Center. It can take us up to three weeks to prepare the petition from the time we receive a complete application (including the fees) from the department.
Processing time at the California Service Centers for I-129 H-1B petitions vary from approximately two to four months. A premium processing petition is usually approved within 15 days. We recommend a premium processing option for employees whose contract is to begin shortly or those who have a visa status that prevents them from working at U of I immediately. We also recommend premium processing in situations when the employee or his/her family members plan to travel outside the U.S. in a near future. Prospective employees in H-1B status currently working for another employer, or those applying for extension of H-1 status usually do not need premium processing. Please feel free to contact us with questions about the best processing option.
View a graph of the H-1B petition process.
Persons holding H-1B status or awaiting a change of status to H-1B may wish to travel out of the U.S. and return shortly. Below is information that will generally describe some effects of travel. None of the information presented here should be considered legal advice.
Basic Concept: Visa vs. Status
Perhaps the most important concept for you to understand, if you are contemplating travel abroad and re-entry to the U.S., is that holding a valid immigration status and holding a valid visa are not the same thing. The visa is a travel permit in your passport. Valid nonimmigrant status is granted to you by the immigration service. You may have valid status and an expired visa. If the immigration service extended your status or granted you a change of status in the U.S., it did not give you a new visa. You do not need a new visa to remain in the U.S., but you probably need a new one to re-enter the U.S.CHECK YOUR VISA BEFORE YOU TRAVEL. MAKE SURE IT IS VALID (reflecting your current status) AND UNEXPIRED.
Re-entering the U.S. in H-1B Status
If you hold H-1B status and depart the U.S. temporarily during your authorized stay (the validity period of the approved petition), you will need the following to re-enter the U.S. in H-1B status:
- Valid, unexpired Form I-797, the H-1B approval notice provided to your employer (a photocopy may suffice if you cannot obtain the original)
- I-797, valid and unexpired, if you changed status to H-1B in the U.S. (this is your new I-94)
- Valid Passport with expiration at least 6 months in the future
- Letter from your employer confirming that you are still employed at the U of I in the position described in the H-1B petition, that you are making a short trip and expected back to work soon.
- Valid, unexpired H-1B visa in passport. If your visa has expired or you changed status in the U.S. and never had an H-1B visa, you must apply for a new visa at U.S. embassy or consulate while abroad. There are two exceptions. Canadian citizens do not need a visa to enter the U.S. Also, any person in H-1B status who visits Canada or Mexico for less than 30 days does not need a valid visa, and may re-enter with an expired visa (even from a previous status like F-1, J-1, B-1, etc.).
- Photocopies of the H-1B petition, including the ETA 9035
Travel While Awaiting Approval of H-1B “Change of Status” Petition
If you are awaiting approval of an H-1B petition that would change your current status to H-1B, do not travel. When you leave the U.S., the immigration service will consider your change of status request abandoned. In most cases, if your petition is otherwise approvable, the immigration service will approve the request for H-1B classification and deny the request for the change of status. This means that you will have to leave the U.S. (again), apply for an H-1B visa, and re-enter the U.S. in order to obtain H-1B status.
Should you find it absolutely essential to leave the U.S. while the petition is pending, you may—in most cases—wait outside of the U.S. for the approval, apply for the visa, and then return. You may also consider “converting” your petition to premium processing to speed its approval.
Travel While Awaiting Approval of H-1B “Extension” Petition
If you are awaiting approval of an H-1B extension petition, you may leave the U.S. briefly without abandoning the petition. Travel does not cause abandonment of the extension request.
Please note that if your original authorization, as noted on the Form I-797 approval notice, has expired, you will not be allowed to re-enter the U.S. As stated above, you must have a valid and unexpired H-1B approval notice and visa to re-enter the U.S. If your original approval has expired, but an extension petition was filed on your behalf before that expiration, you may continue working for up to 240 days, but you will not be able to re-enter the U.S.
Travel While Awaiting Approval of H-1B “Change of Employer” Petition
Recent changes in the law allow “portability” of H-1B status. In short, beneficiaries may begin working for a new employer once that employer has filed the H-1B petition with USCIS. The employer and employee are not required to wait for approval before beginning the employment. If you held H-1B status for one employer and your new employer filed “a change of employer” petition on your behalf, you may travel without abandoning that petition. However, you will only be allowed to re-enter the U.S. if the period on your old approval notice for your previous employer has not yet expired. You must present the old approval notice, the new receipt notice, a valid and unexpired visa. This is an especially complicated issue, so seek advice before traveling if you are awaiting approval of an H-1B “change of employer” petition.
Travel After Approval of H-1B “Change of Employer” Petition
If an H-1B “change of employer” petition filed on your behalf was approved, you may follow the list above in “Re-entering the U.S. in H-1B Status” and travel and re-enter the U.S. If your H-1B visa is still valid, even though it lists your previous employer, you may use it to re-enter the U.S.
Travel While Awaiting Approval of a Lawful Permanent Residence Petition
In most cases, if you are able to return to the U.S. in H-1B status, you will not be considered to have abandoned a pending lawful permanent residence petition filed on your behalf.
Other Considerations
Any trip abroad while you hold H-1B status in the U.S. must be planned carefully. Missteps that might seem small can have dire consequences. There are many considerations.
- Do you need a visa to enter the country you plan to visit? To find out, you may visit that country’s embassy website.
- Do you need a U.S. visa to re-enter the U.S.? If so, you will need to do some research to find out how to apply for the visa, how long it will take to get an appointment and how long it will take the consulate to issue the visa. Visit the Department of State website for general information about visas.
- To obtain information about appointments, processing times, and other “local factors,” access the website of the U.S. embassy or consulate in the country you plan to visit or see the U.S. Department of State travel website.
Please note that all H-1B petitions for employment at the University of Idaho must be processed by International Programs. Processing of H-1B petitions for employment at the U of I by outside attorneys is not permitted unless special circumstances exist.
At the U of I the H-1B immigration category can be used to employ foreign national employees in permanent or temporary, full-time teaching and/or research faculty positions at the professor, associate, assistant professor, instructor/lecturer, assistant research professor, post doctoral researcher, researcher and research assistant levels.
H-1B temporary workers are defined as persons who will perform services in specialty occupations on a temporary basis. The Immigration Act of 1990 defines specialty occupation as: "an occupation which requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation” along with at least a bachelor’s degree or its foreign equivalent in the field required for the position. In some cases a combination of education, specialized training and experience can be used to fulfill this condition. In addition, the employer must meet the prevailing wage required by the Department of Labor and pay the higher of: the prevailing wage or the actual wage. The "actual wage" is defined as the average salary for employees with the same title and similar educational background employed in the same institution. International Services maintains a public inspection file on each H-1B worker required by the Department of Labor.