H-1B Visa

Clemson University is committed to developing a faculty and community of researchers that represents top talent. Toward that end, the University facilitates the process of requesting employment authorization for qualified faculty and researchers to work at Clemson University. In many cases, the H-1B non-immigrant employment visa is the best option for non-U.S. citizens.

The U.S. Department of Homeland Security (DHS) states the H-1B visa is appropriate for employment authorization in a "specialty occupation" that requires both a "theoretical and practical application of a body of highly specialized knowledge, and 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."

All requests for H-1B status at Clemson University must be initated through the hiring department. If you are a hiring department interested in employing a non-U.S. citizen for H-1B employment authorization, or a current/new employee interested in obtaining an H-1B visa, International Services will guide you through the process. Our office is the only office allowed to file H-1B petitions for Clemson University. As such, we are here to provide knowledgable advice and support to all campus departments and H-1B employees. For information on the H-1B process, please contact International Services.

  • H-1B Overview

    For H-1B sponsorship, there are three important items to consider:

    • U.S. Department of Labor (DOL) and U.S. Department of Homeland Security (DHS) Regulations
    • Salary Requirements
    • Time allowed for H-1B Sponsorship


    U.S. DOL and U.S. DHS Regulations

    There are two important and different steps in filing a petition for an H-1B visa. The first step is the position meeting the definition of being a "specialty occupation" as defined above. The second step is for the prospective employee to be eligible for the H-1B visa. The decision on the position’s eligibility is made by filing a Labor Condition Application (LCA) with the U.S. DOL. The U.S. DHS evaluates the prospective employee for H-1B visa eligibility. If both the position and the individual meet the eligibility requirements, an H-1B visa will be approved. If one or both do not meet the requirements, the H-1B visa will be denied.

    Salary Requirements

    To qualify for an H-1B visa the prospective employee must be paid the required wage set by the U.S. DOL. The salary required by the U.S. DOL is based on the position and geographic location of employment and does not always align with other suggested or recommended salary guidance.

    • Actual Wage
    • Prevailing Wage
    • Required Wage


    The actual wage is the wage that people who are similarly employed with the petitioning employer, i.e. the university, are paid. In theory, this is the wage that people doing the same work with the same level of experience, skills and accomplishments are paid.

    The prevailing wage is the wage that people who are in a similar occupation in a given geographic area are paid.  This wage is based on external wage data, provided by the DOL, and considers the requirements for the position in relation to the requirements that the DOL considers typical for the occupation.

    The required wage is determined by International Services and is equal to the prevailing wage or the actual wage, whichever is higher.

    In some cases, the prevailing wage is higher than the actual wage and even the offered wage. If the prevailing wage is higher than the offered wage, the offered wage must be increased to meet or exceed the prevailing wage.

    Time Allowed for H-1B Sponsorship

    H-1B status can normally be awarded for a total of up to six years, but in increments of no more than three years.  Any time spent abroad during these six years can be reclaimed and added to the total, as long as the absences from the U.S. can be documented. Extensions past the sixth year are possible under limited circumstances, but only if the H-1B visa holder is the beneficiary of an employment-based green card application. Once someone has exhausted their time in H-1B status and no extensions based on an underlying green card application are possible, the beneficiary must reside abroad for a full year in order to become eligible for a new six year period of H-1B status.

  • H-1B Transfer/Portability and the 240-Day Rule

     

     

  • Can my dependents get H status?

    Once an employee has been granted H-1B status, his/her spouse and unmarried minor children (under 21) will normally be eligible for H-4 status. You must be able to demonstrate that you are able to support them financially while in the U.S.A. Employees are responsible for all costs of dependent visa applications.

    Can my dependents work or study in the U.S.A.?
    Persons in the U.S.A. with H-4 status cannot be employed in the U.S.A., but they are allowed to attend school.

    When can I apply for H-4 status for my dependents?
    You can apply for H-4 status for your dependents while your H-1B petition is in process, that is, after it has been initiated by the department. You do not need to wait for the approval of your H-1B petition.

    How do I obtain and extend H-4 status for my dependents?
    The USCIS charges a filing fee (paid by the employee) for H-4 renewal. Please see link here for USCIS filing fees.

    What if my dependents are outside of the U.S.A.?
    If the dependents are outside the U.S.A., Clemson University does not need to include any information about them in your petition. After your H-1B petition has been approved, the dependents may apply for H-4 visas at the U.S.A. consulate in their home country.

  • How do I extend H-1B status as it expires?

    H-1B status can be extended for a maximum of six years, but must be renewed as each petition expires. If you hold an ongoing position at Clemson University, you will need to progress to permanent resident (green card) status to remain in the position beyond 6 years. Departments can request extension of H-1B status for a current position if the duties remain the same and the employee has not used the full 6 years of available H-1B benefit. To apply for extension of H-1B work benefit, the hiring department should send a completed and signed CU H-1B Form along with all the required documents to OGE. Can I still work while waiting for extension approval? For payroll purposes, if the University has filed a timely application for an extension of status, the employee is authorized to continue employment for a period not to exceed 240 days beginning on the date of expiration of the previously authorized period of status. What do I need to do after the approval notice is received? When the approval notice is received at the OGE, we will notify the department contact person that your Form I-94 is ready for pickup. You will then need to bring your passport to receive the Form I-94 from OGE, take it to HR and complete an updated I-9 form in HR for payroll purposes.

  • Can I change positions at Clemson without updating my H-1B?

    The employing department must notify OGE of any change to job duties, such as job title, salary, duties, housing department, work location/campus, etc. The attorney will determine if the changes are considered substantial enough to require a renewed LCA and/or an amended petition to USCIS. What is the procedure if an amendd petition is neccessary? The hiring department must submit an amended H-1B petition to USCIS when an employee's position undergoes a substantial change. What are the federal regulations and policies for persons with H-1B status? As with any foreign status, federal regulations dictate your rights while in the U.S.A. It is important to understand the restrictions of your foreign status. Please read the following information carefully and contact OGE should you have any concerns. What should I do if I change my address? Persons in H-1B status who are physically present in the U.S.A. must notify USCIS of all changes in their residential address. This must be done by filing a Form AR-11 directly with USCIS. What happens when I leave employment with Clemson? If you are leaving your position at Clemson, you must submit the IS-410 Form to the OGE. There is no official “grace period” for person in H-1B status after your period of authorized stay in the U.S.A. ends or after your employment terminates. You should apply for change of status prior to employment termination or plan to depart the U.S.A. immediately at the end of your employment (authorized period of stay).

  • Can I travel abroad and re-enter the U.S.A. on H-1B status?

    Do not travel outside of the U.S.A. while your H-1B petition is being processed without first consulting OGE. Doing so may complicate or disrupt the review of your petition and delay approval.

    Once you have received your approval, you are permitted to travel. However, numerous restrictions apply. Please read through the following to avoid any complication or delays with re-entering the U.S.A.

    What do I need to re-enter the U.S.A. while on H-1B status?
    Generally, you need a valid, unexpired H-1B entry visa in your passport for entry into the U.S.A. An entry visa is a stamp in your passport, which you obtain from a U.S.A. consulate outside the United States. It is NOT the same as the H-1B Notice of Approval (Form I-797) .

    Renewals of the H-1B entry visas are not possible inside the United States. Canadian citizens entering the U.S.A. in H-1B status are exempt from the entry visa requirement.

    What should I carry with me when travelling?
    You should carry the following documents whether or not you have a valid H-1B entry visa.

    Items provided by the OGE when the H1-B petition is approved by USCIS:

      • I-797 Notice of Action (Approval Notice)
      • Copy of employer’s I-129 petition
      • Copy of approved Labor Condition Application

    Other Documents:

      • Updated letter confirming your employment position and salary. Your original offer letter is often several months old by the time you travel and should be updated as evidence that you still have an employment position when you are applying for a visa.
      • Copy of your most recent pay statement if currently employed – available from MyCLE. The pay statement helps provide additional evidence that you are currently employed.
      • If you previously had J-1 or J-2 immigration status and obtained a waiver of the 2-year home residence requirement, you will also need the I-797 Approval notice granting the waiver (Approval of your I-612 application for waiver).

    (Note: A letter from the U.S.A. State Department recommending the waiver is insufficient. You must have the final waiver approval from the USCIS.)

    What are some restrictions to travel on my H-1B?
    If any changes to your employment have occurred since your H-1B benefit was approved, contact OGE to discuss whether those changes will affect your visa application. Significant changes could be: changes in job title, full-time to part-time, changes in employing department, changes in job duties, location of employment, etc.

    Security Advisory Opinions – Security is the primary concern of the U.S.A. consular officers. In their view, your timely return to work is secondary. Consulates have access to a variety of databases such as criminal activity, terrorism watch lists, etc. If you have had any problems with police, such as convictions of crimes or arrests, these can disrupt a return to the U.S.A. and you should contact an immigration attorney for advice before leaving the U.S.A. The visa issuance process requires special scrutiny for people from certain countries or regions, which may cause delays. People who have common names may experience delays caused by a matching name in one of the databases used for screening.

    If you work with sensitive technology – i.e. technology with application to both military and civilian purposes, be cautious about travel. If you work with high technology, you should carry a letter from your faculty supervisor, which explains, in nontechnical terms, the following:

      • The nature of the research – what is the aim of the research?
      • Where does the research funding come from?
      • To what extent is the research already in the public domain?

    This type of letter will not prevent a security review but will be useful to the agencies conducting the review and can help speed the process. Some of these clearances have been known to delay return of employees for as long as a year. If you have any questions or concerns about export controls please contact Tamara Hemingway (theming@clemson.edu) in the Research Office.

  • Can I apply for permanent residency on H-1B status?

    Yes! H-1B status allows for "dual intent" inside the U.S.A. Dual intent refers to the intent to maintain a nonimmigrant status inside the U.S.A. at the same time as intending to apply for an immigrant status/visa (Lawful Permanent Resident - LPR - status).

    H-1B status is limited to six years, so employees looking to stay in your position longer should apply for permanent residency (green card).

    If you intend to apply for permanent residency, please look into the process within 6 -12 months of your hire at Clemson. Waiting longer than this may extend both processing time and costs.

    How can I apply for permanent residency?
    To initiate the process of applying for a green card, please complete the Form IS-450, Request for Permanent Residency Application and send to OGE. When this form is received, OGE will contact you and the hiring department to discuss the steps and to initiate your communication with the University's legal representatives in this process.

    More information about permanent residency at Clemson University can be found here.

Important H-1B Terms
Petitioner – Clemson University (hiring department)
Beneficiary – H-1B applicant
USCIS – U.S. Citizenship and Immigration Services
DOL – U.S. Department of Labor
I-129, I-797, I-94, etc. – forms issued by the USCIS
OGE – Clemson University Office of Global Engagement
HR - Clemson University Human Resources