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Employment Authorization Information

This webpage is meant to help University community members navigate the complex issues encountered when pursuing immigration sponsorship (see the contents listed below).  This webpage, however, does not address all the issues that may arise when pursuing sponsorship.  To that end, if there are further questions upon reviewing this webpage, questions should be directed to Patsy Bernal in the Office of Legal Affairs (937-229-4212 or pbernal1@udayton.edu). 

Immigration sponsorship, that is, taking the necessary steps to enable a foreign national the ability to hold employment in the United States, is a complex process governed by multiple federal agencies.  Typically, most international employees (faculty or staff) begin work at the University in a temporary "nonimmigrant" status afforded by an H-1B, J-1, or F-1 practical training (aka OPT) approved petitions/visas.  Where employment is anticipated to be long-term, departments may wish to consider attempting to obtain permanent residence or "immigrant status" for an international employee.  See Permanent Residency for more details.

Table of Contents

1.   H-1B Specialty Occupation Worker for Permanent Faculty/Staff

2.   H-1B Fees

3.   H-1B Step-by-Step Process

4.   Changing Status

5.   H-1B Extension

6.   Changes in Position

7.   Portability

8.   Departure

9.   Permanent Residency

10.  Legal Representation

11.  Important Contact Information

12.  Faculty Teaching Positions

13.  Staff Positions

14.  Exemptions from the Labor Certification Requirement

15.  Permanent Resident and "7th Year" H-1B Extensions

1.  H-1B Specialty Occupation Worker for Permanent Faculty/Staff

The H-1B Specialty Occupation Worker nonimmigrant classification allows an internal hire to work in the U.S. in a position considered to be in a "specialty occupation."  This means the position must require highly specialized knowledge and skills to perform the position and require a bachelor's degree or its equivalent.  In addition, the employer must pay the prevailing wage or higher and attest to certain working conditions under U.S. Department of Labor laws.

The process to apply for an H-1B is complex due to U.S. labor and immigration laws and regulations that protect the foreign worker from abuse and ensure jobs for U.S. workers.  The amount of time it takes to get an approved H-1B status is often difficult to estimate because processing times of the government agencies fluctuate and change without notice.

The employer, not the foreign national, applies to the government agencies for the H-1B classification.  Documentation must be provided to demonstrate the employer is paying the required wage rate and meeting the required working conditions; that the job is a specialty occupation; and that the foreign national meets the requirements for the job.  These materials and related forms are compiled into an “H-1B petition” and submitted to the U.S. Citizenship and Immigration Services (USCIS) for approval of the H-1B.

2.  H-1B Fees

Sponsorship costs are borne by the relevant UD host department.  Costs to obtain temporary work authorization, H-1B, which lasts for 3 years and can be extended for a second 3-year term, range between $950 and $3000.  Permanent work authorization - the green card, which (at UD) typically is sought after someone already has an H-1B – can cost an additional $8000 to $10,000.

3.  H-1B Step-by-Step Process

H-1B petitions are typically processed by the UD’s Office of Legal Affairs (OLA).  More complicated petitions are referred to outside counsel selected by OLA.  The hiring department is responsible for the immigration processing fees associated with an H-1B, including outside counsel fees for any work performed beyond the customary immigration fees.  As noted above, costs to obtain an H-1B, which lasts for 3 years and can be extended for a second 3-year term, range between $950 and $3000. 

Once all the appropriate approvals have been made by the University personnel, the international hire will need to submit materials to the OLA to prepare an H-1B petition.  It takes approximately 5 to 8 months to get an H-1B approval notice after OLA receives the necessary materials.  The amount of time varies primarily because government agencies' processing times fluctuate and change without notice.  Other factors that also impact the processing time are whether a department chooses to pay an additional fee to USCIS for quicker processing, or if there are problems with the offered salary or materials submitted.  The steps below describe the process.

OLA needs the appropriate approvals to begin to prepare an H-1B petition.  See the Employment Immigration Policy.


The petition materials are reviewed by OLA for the required items to begin processing the H-1B petition.   

(Estimate 1 week)


OLA prepares a Labor Condition Application if the offered salary meets, or is greater than, the prevailing wage determination.

(Estimate 1 week)


The relevant UD host department is required by law to post the LCA at the work-site(s) for 10 business days.  The LCA should be posted in 2 conspicuous locations where wage and hour postings are typically posted, i.e., HR and relevant UD host department bulletin boards.


The department verifies the LCA has been posted, and OLA submits the LCA to the DOL to get their official certification of approval.

(DOL estimated processing time is 7 to 10 days)


OLA completes the I-129 forms and compiles the certified LCA and related supporting documentation for submission to USCIS.

(Estimate 1 week)


OLA express mails the H-1B petition to USCIS.

USCIS's estimated processing time is 5 to 8 months when UD (borne by the relevant host department) pays the standard $460* processing fee.  For quicker processing, the employer can pay an additional “Premium Processing Fee” of $1410* to USCIS for processing in 15 days.  (Please note that paying the USCIS Premium Processing fee will not quicken the processing of the steps listed above.)

* Fee subject to change


USCIS mails the approved H-1B petition to OLA and OLA will forward the approval and related materials to the relevant UD host department and the employee.


4.  Changing Status

If an individual is currently in another nonimmigrant classification (e.g., F-1, J-1, H-4, etc.) and is changing to H-1B status, that person will need to wait until USCIS approves the H-1B petition before he/she can begin working in H-1B status.  Some individuals who are in the J status are subject to a 2-year home-country return requirement called 212(e).  If so, the individual will need to apply for a waiver of 212(e) or have served the 2-year requirement before being granted H-1B status.  Applications for the waiver can be done concurrently while the person’s H-1B case is being prepared.  However, final approval from the U.S. Department of State showing that the waiver has been received must be included with the individual’s H-1B petition when it is submitted to USCIS.  Timing of the waiver application should be carefully considered since it may impact the person’s current situation.  Consult with OLA about the waiver process before applying.

If an individual is currently on F-1 OPT, he/she may also be eligible for additional time on OPT if his/her OPT is in one of the STEM (Science, Technology, Engineering, Mathematics) fields.  

5.  H-1B Extension

To continue employment at the University of Dayton beyond the current H-1B petition end date, another H-1B petition must be submitted to USCIS to extend the H-1B status of an international employee.  The maximum period for H-1B status is 6 years unless an individual is currently in the permanent residence process.  See Permanent Residency for more details.

An H-1B petition for an extension requires all the same procedures and materials listed in the H-1B Step by Step Section takes approximately 5 to 8 months.  It is the responsibility of the internal employee (whether it is faculty or staff) to inform OLA of the expiration of his/her immigration status at 6 months before that status expires.

Since the individual is in the H-1B status, the employee can continue to work as long as OLA has received the official receipt notice from USCIS before the current H-1B petition expires.  The receipt notice is received approximately 3 weeks after the petition is submitted to USCIS.  However, the official H-1B approval notice is required for re-entry after travel outside the United States and needed if and when applying for a U.S. visa stamp.

6.  Changes in Position

An H-1B petition is job and employer-specific and therefore any substantial change in the position such as job title, requirements, or duties, requires the change be submitted through an H-1B petition to USCIS.  Even if the position is in the same department at UD, a change in previously approved employment H-1B petition must be submitted before the international employee can start working in the new position.  Since the employee is in the H-1B status, the employee can begin working in their new position after the OLA receives the official H-1B receipt notice from USCIS and on or after the requested start date of the petition.  The change in employment H-1B petition takes approximately 5 to 8 months.  Notification as soon as possible to OLA by either the Office of the Provost or Human Resources and the managing supervisor is strongly recommended to mitigate any interruptions in employment.  

7.  Portability

If an H-1B holder wants to change from another employer to employment at UD, a new H-1B petition must be submitted to USCIS before the employee can start working at UD.  USCIS portability regulations allow the individual to start working at the new employer when the USCIS official receipt notice is received, and it is on or after the requested start date of the H-1B petition.

USCIS has established a new grace period that allows up to 60 consecutive days, or until the existing validity period ends, whichever is shorter, to remain in the U.S.  When the grace period is applicable and invoked, an individual may not work during the grace period, and the grace period only applies one time per authorized nonimmigrant validity period (time period between the visa issuance and the expiration date).  Arrangements should be made with the former employer and the University of Dayton to accommodate the move.  The portability petition takes 4 to 7 months.  It is important to note that there is still no grace period for H-1B visa holders whose employment ends on the same ending date of their approval notice, Form I-797.   Click here for information about the I-797.

8.  Departure

Termination of employment

Early termination by the department before the end date of the H-1B Approval Notice will result in the department being responsible for paying for the reasonable cost of return transportation to the home country.

New H-1B Grace Period

Effective January 17, 2017, the U.S. Department of Homeland Security (DHS) amended its regulations and issued an action called the “Final Rule” (81 FR 82398) that provides various benefits to H-1B visa holders.  It is important to note that there is still no grace period for H-1B visa holders whose employment ends on the same ending date of their approval notice, Form I-797.  However, the final rule is still consistent with the current practice where “Customs and Border Protection officers may annotate a Form I-94 entry stamp in a passport when admitting an individual in H-1B classification to reflect a grace period of up to 10 days at the end of the period of stay.”  The final rule goes on to explain that “under existing regulations, DHS does not consider 10-day grace periods to be automatically provided, rather, they are provided through an exercise of discretion on a case-by-case basis.”

One of the most significant changes in the regulations affecting H-1B visa holders relates to those whose employment ends before the validity period of their petition, as listed on the Form I-797, who are now allowed a grace period of 60 days or until the end of the petition’s validity period (or time indicated on I-94), whichever is shorter.

The expressed purpose of the regulation update by DHS is to facilitate the ability of qualified nonimmigrants “to transition to new employment in the United States, seek a change of status, or prepare to depart the United States.  Consistent with longstanding policy, DHS declines to authorize individuals to work during these grace periods.”

9.  Permanent Residency

Most international faculty members and other international employees (e.g., research or program staff) begin work with the University in a temporary or "nonimmigrant" status such as H-1B, J-1, TN, or F-1 practical training.  Where employment is expected to be long-term, however, departments may wish to consider attempting to obtain permanent resident or "immigrant" status for an international employee.  This page provides a very brief summary of University procedures regarding the permanent residence process and contact information for further details and legal assistance.

10.  Legal Representation

The University will be represented in permanent residence cases by an outside attorney appointed by OLA.  This restriction on representation applies to all labor certifications and I-140 immigrant worker petitions, including the following categories:  EB-1 (outstanding professor/researcher) and EB-2 (advanced degree professional or alien of exceptional ability.)  The international employee is not permitted to find and pay for an attorney to represent the University in any immigration matter or otherwise hire an attorney to prepare immigration filings for the University.  The international employee may find and hire his/her own attorney only in cases where he/she is permitted to self-petition and sign the I-140 himself or herself (e.g., EB-1 extraordinary ability self-petitions and EB-2 national interest waiver "NIW" self-petitions.)

11.  Important Contact Information

A department wishing to begin the permanent residence process for a faculty member or other employee should contact Patsy Bernal, Associate University Counsel/Affirmative Action Officer, in OLA via e-mail at pbernal1@udayton.edu or by phone at 937-229-4212.  While the Office of Legal Affairs will be able to provide additional guidance and applicable documentation appropriate to the specific case, OLA does not make a determination on whether a position is eligible for sponsorship.  For more information, please see the Employment Immigration Policy.

12.  Faculty Teaching Positions

To obtain permanent residence for an international employee hired into a long-term faculty teaching position (e.g., Assistant Professor, base funded lecturers), OLA needs the appropriate approvals to begin to prepare a green card application.  See Employment Immigration Policy.

The sponsoring department must first show, in an application to the U.S. Department of Labor ("labor certification") that the faculty member was selected pursuant to a national competitive recruitment and selection process and was the most qualified applicant.  At a minimum the recruitment steps must involve:  (1) a printed advertisement in a national professional journal for a minimum of 30 days; (2) an internal Notice of Filing; and (3) a recruitment report that describes the process in detail and why the selected individual is more qualified than each applicant not selected.  (Of course, University positions will also typically be posted on UD’s website.)  The sponsoring department must keep copies of all advertisements, postings, resumes, and other recruitment documentation.

(Estimate 3 months)


The labor certification (AKA “PERM”) must be filed no later than 18 months after the faculty member accepts the position.  Due to the time involved in preparing the application, departments should begin the permanent residence process for a new faculty member immediately after acceptance is made.

(DOL estimated processing time for labor certification is 9 to 12 months, maybe longer depending on the immigration landscape)


If the labor certification is approved, the employer must petition USCIS to classify the foreign national as an "immigrant worker."  (This petition is commonly referred to as the "I-140" – the USCIS form used for filing the petition.)  Here, USCIS evaluates the requirements of the position and the credentials of the international employee to determine whether he/she fits into a statutory category that would permit him/her to apply for permanent residence. 

(USCIS estimated processing time is a minimum of 4 to 6 months, maybe longer depending on the immigration landscape)


If the I-140 petition is approved, the international employee and his/her dependents may apply to USCIS for permanent residence in the United States.  (This application is commonly referred to as the "I-485" – the USCIS form used for filing the application.  Click here for information about the I-485.)  Here, USCIS looks primarily at the foreign national’s background to determine whether he is eligible for permanent residence (e.g., criminal record, immigration history, health.)  In some cases, depending on the country of birth of the foreign national, visa backlogs may result in a wait of several years after the I-140 is approved before the foreign national may file the I-485.

(Estimated USCIS processing time is a minimum of 2 to 10+ months)


13.  Staff Positions

To obtain permanent residence for an international employee in a non-faculty position (e.g., research or program staff) the department must first show, in an application to the U.S. Department of Labor ("labor certification"), that no "minimally qualified" U.S. workers are ready, able, and willing to take the position on the terms offered.  (Please note that both the legal standard and the required recruitment differ significantly between faculty and non-faculty cases.)  Labor certification for non-faculty involves a government-specified recruitment process to test the U.S. labor market in a manner appropriate to the position. Departments must contact the OLA for detailed instructions and guidance concerning this process.

If the labor certification is approved, the remainder of the process is the same as that for faculty positions.  The employer must petition U.S. Citizenship & Immigration Services ("USCIS") to classify the foreign national as an "immigrant worker".   (This petition is commonly referred to as the "I-140" – the USCIS form used for filing the petition.  Click here for information about the I-140.)  Here, USCIS evaluates the requirements of the position and the credentials of the international employee to determine whether that he/she fits into a statutory category that would permit him/her to apply for permanent residence.

If the I-140 petition is approved, the foreign national and his/her dependents may apply to USCIS for permanent residence in the United States.  (This application is commonly referred to as the "I-485" – the USCIS form used for filing the application.  Click here for information about the I-485.)  Here, USCIS looks primarily at the foreign national’s background to determine whether he/she is eligible for permanent residence (e.g., criminal record, immigration history, health).  In some cases, depending on the country of birth of the foreign national, visa backlogs may result in a wait of several years after the I-140 is approved before the foreign national may file the I-485.

14.  Exemptions from the Labor Certification Requirement

There are limited situations in which the sponsoring department may seek an exemption from labor certification and begin the residency process at the I-140 immigrant worker petition stage.  Please note that these cases carry a very high burden of proof and should only be filed where the department can make a strong argument that the foreign national satisfies all of the requirements.  The following is a discussion of the two exemption categories that are of most interest in the University context.

First, a department may file a petition for an Outstanding Professor or Researcher (also known as "EB-1B").  To qualify in this category, the department must show that the foreign national:  (1) is internationally recognized as outstanding in a specific academic field; (2) has three years of relevant teaching or research experience; and (3) has a job offer for a tenure-track teaching or permanent research position.  In addition to avoiding the labor certification requirement, the outstanding professor/researcher classification places the foreign national in the "1st Preference" employment-based immigration category.  This can dramatically shorten the overall time to obtain permanent residence for foreign nationals from countries where the employment-based visa categories are severely backlogged (e.g., India and China).  However, petitions for outstanding professors or researchers are heavily scrutinized, and the foreign national must meet a very high standard.

Second, a department may file a petition seeking a waiver of the labor certification requirement in the national interest.  To qualify for a national interest waiver ("NIW"), the foreign national must have an advanced degree or exceptional ability in the sciences, arts, or business.  In addition, the petition must satisfy a three-part test:  (1) the foreign national must be working in a field of substantial intrinsic merit; (2) the benefits of the alien's employment must be national in scope; and (3) the alien or employer must show that the national interest will be adversely affected if a labor certification is required.  Interpretation of the third part of this test is extremely complex, but in the academic environment, for example, USCIS may examine whether the foreign national has contributed to his field to a substantially greater degree than his peers.  Unlike petitions for outstanding professors or researchers, NIW cases, while avoiding the labor certification process, fall in the "2nd Preference" and will still potentially result in lengthy waiting periods for foreign nationals from countries where employment-based visa categories are severely backlogged (e.g., India and China).

As noted above, in all outstanding professor/researcher cases and all NIW cases where the University is the petitioner, the University will be represented by counsel assigned through OLA.

15.  Permanent Resident and "7th Year" H-1B Extensions

In most cases, a foreign national may only remain in H-1B temporary worker status for a total of six (6) years.  After the end of the sixth year in H-1B status, the foreign national must be physically outside the United States for one year before he/she is permitted another six-year period as an H-1B.  

However, the American Competitiveness in the 21st Century Act permits limited H-1B extensions beyond the 6th year when an employer is sponsoring a foreign national for permanent residence.  Although there are several different sections of the AC21 rule that affect these so-called "7th year" H-1B extensions, the most commonly applied provision permits extensions of H-1B status in one-year increments in cases where more than 365 days have passed since the filing of a labor certification or I-140 petition.  Thus, it is strongly recommended that a department considering sponsoring an employee for permanent residence file a labor certification or I-140 petition before the end of the employee’s 5th year in H-1B status.  Since it often takes many months to conduct the required recruitment for a labor certification and/or prepare an I-140, as a practical matter, the department should begin working on permanent residence before the end of the 4th year of the employee’s H-1B status.

CONTACT

For questions relating to the University policies of Legal Affairs, please contact:


Office of Legal Affairs
937-229-4333
Email