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.
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.