H-1B Guidance for Hiring Department
For H-1B sponsorship, hiring departments should consider the following:
- U.S. Department of Labor (DOL) and Department of Homeland Security (DHS) Regulations
- Salary Requirements
- Duration of H-1B Status
- H-1B Sponsorship Timeframe
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 here. The second step is the employee being eligible for H-1B status. 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.
For the position 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
The actual wage is the wage that people who are similarly employed with the petitioning employer 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 U.S. government requires the employee be paid either the actual wage or the prevailing wage, whichever amount 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.
Duration of H-1B Status
H-1B status can be awarded for a total of up to six years in increments of no more than three years at a time. Extensions past the sixth year are possible but only if the employee has a pending and backlogged green card application. USCIS will consider requests to recapture time spent outside the U.S., while in H-1B status, as long as the absences from the U.S. can be well documented. 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 Sponsorship Timeframe
The timeframe for H-1B sponsorship can vary greatly depending on the individual’s current immigration status and their physical location. Someone who holds H-1B status with one U.S. employer may be able to transfer their H-1B status to Clemson University in approximately 8-10 weeks. However, if an individual, in the U.S., holds a different immigration status or lives outside the U.S. and must apply for an H-1B visa stamp abroad, the process can take approximately 4 to 8 months. To ensure timeliness and efficiency, International Services should be notified as soon as a job offer is accepted by the individual needing H-1B status.
H-1B Application Forms