H-1B Instructions and Processing Procedures for Department

Navigate to International Buckeye to enter the scholar’s basic information and submit an invitation request for the scholar to complete their personal information. Once the department and the scholar have entered all the necessary information and uploaded all relevant documents, the record can then be submitted electronically to the Office of International Affairs.

Due to the complexity and various types of the H-1B petitions (New, Extension, Consular Notification and Portability) the record should be submitted to the Office of International Affairs six months in advance of the intended start date of the H-1B petition, whether or not it is for an extension or new employment. Petitions submitted to the Office of International Affairs with requested start dates less than six months into the future will likely need to be changed and/or may result in the foreign national needing to leave the United States and be terminated on their current status end date.

The H-1B Temporary Worker classification is designated by USCIS for non-U.S. workers in specialty occupations, defined as those positions requiring: 

1. A theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation in such fields of human endeavor as architecture, engineering, mathematics, physical sciences, social sciences, medicine, health, education, business specialties, accounting, law, theology and the arts; AND
2. A bachelor’s or higher degree in a specific specialty as a minimum entry into the occupation in the United States 

More specifically, the individual must possess a minimum of a bachelor’s degree in the required field for the position. Also, the position itself must require a bachelor’s degree in a specific field(s) of study relevant to the duties to be performed, and the required degree must be one that is a standard requirement for the position being offered. 

If one of the above requirements cannot be met, then the department should not submit the case to the Office of International Affairs and seek advice from the Office of International Affairs about other options.

Additional H-1B requirements 

H-1B petitions are approved for a specific job in a specific location by a specific employer. Thus, if the individual will be employed by an affiliated faculty dental or physician practice association with a Federal Employer ID number different than Ohio State (31-6025986), then a second, subsequent H-1B petition must be filed. 

Note: These instructions do not cover all possible aspects surrounding a particular individual’s circumstances; contact an Office of International Affairs immigration coordinator for more information.

If you have not filed an H-1B petition before, you must attend an H-1B training session before submitting your petition application to the Office of International Affairs. Contact Robert Bauchmire at bauchmire.1@osu.edu to register for the H-1B training session.

Approved position description 

Position description (from Workday) that fulfills all five of the criteria below and matches verbatim what is in the letter of support:

• Note: The report is titled View/Print Position Description Documents in Workday. If you are having difficulty, contact Central Payroll at Ohio State, 614-247-6947.

Position Description must:

1. Say “approved” (not “proposed”) under “Position Status”
2. Match the information on the H-1B Department Form
3. State the official position classification and the detailed job description
4. State the minimum education requirements [degree level AND major(s)] for the position 
   Note: Please ensure that the employee possesses the appropriate degree level (Bachelor’s, Master’s, PhD) and major(s) as described in the approved position description. An individual’s degree and major must be consistent with the stated requirements in a position description.
5. State any experience requirements for the position
6. State the number of non-student supervisees
   Note: the number should only include people over whom this position will have hiring/firing and performance review authority. All other such duties should be described as ‘oversees’ or ‘direct’ and should not be included in the number of supervisees

Letter of Support addressed to USCIS

For faculty positions, a copy of the original faculty letter of offer is sufficient and preferred. 

• Note: Lecturer positions should use the standard support letter.

For all non-faculty positions, provide a letter of support from the department chair or authorized signer. See Sample Letter (Link Forthcoming). 

• Note: Reference employee’s degree, CV and the position description when drafting so the stated requirements exactly match what was stated in the position description. Also, the stated qualifications of the employee must match their CV and degree.

For extension requests for continuation in the same position, please include a brief letter stating the following: 

• “This letter is in support of the petition for extension of H-1B status on behalf of Dr. XXXX. Projects are ongoing and Dr. XXXX’s services are still needed. Thank you for your consideration.”

H-1B Department Agreement

H-1B Actual Wage Worksheet

• Email employee “Employee Section” of H-1B Instructions and Processing Procedures for Department
• Ensure that all required documents listed on the Employee Checklist are included with your submission to the Office of International Affairs

• All information must be completed before submitting the requisition
• Reference the individual’s full name on the requisition
• Include account number (usually 63606 or 63636 except Medical Center cases)
• Itemize each H-1B fee on the requisition using the chart below: I-129 $460 (all cases), fraud prevention $500 (if applicable), premium processing $2,805 (if applicable), and the Office of International Affairs processing fee $1,500 (all cases).
• Requisition must show departmental system approval
• Upload “APPROVED” requisition to the Scholar Center

Complete a requisition for $1,960, $2,460, $4,765, or $5,265 depending on the circumstances outlined below. You will need to coordinate with your department fiscal officer to do this.

Note: The Office of International Affairs will request the necessary checks from Accounts Payable. However, the $370 fee for Form I-539 for any dependent family members paid by the employee should be included with the documentation provided by the employee. If the department will pay, do not list the $370 on the requisition; instead, the department should cut a check and submit to the immigration coordinator assigned to the case.

* The Office of International Affairs Processing fee is non-refundable once processing in the Office of International Affairs commences. The portion of the requisition applicable to USCIS processing fees becomes non-refundable once the H-1B petition and fees (checks) are mailed by Office of International Affairs to USCIS.

** Premium Processing ONLY speeds up processing at the USCIS stage. It does NOT speed up processing in Office of International Affairs, the Prevailing Wage National Processing Center or the U.S. Department of Labor. It does not speed up issuance of the H-1B visa stamp by the U.S. Department of State if the individual is waiting abroad for approval of the H-1B petition by USCIS.

Submission

A PDF of the requisition and all other documents must be uploaded to the scholar’s record, prior to submitting to the Office of International Affairs.

Estimate of processing times for the application.

Office of International Affairs

Initial Processing - estimate 2 weeks.

1. The Office of International Affairs will begin processing only upon receipt of all required information and documentation.
2. Review of Documents: The Office of International Affairs will review supporting documents for accuracy and acceptability and will notify the department or employee if additional documentation is needed.
3. Confirmation: The Office of International Affairs will send confirmation of receipt of the H-1B petition. This email will provide the name and email address of the Scholar Immigration Coordinator in the Office of International Affairs assigned to the case.

Department of Labor

Estimate: 3-5 months.

1. Actual Wage: The Office of International Affairs will determine that U.S. Department of Labor (DOL) actual wage regulations are met based on information provided on the H-1B Actual Wage Worksheet.
2. Prevailing Wage: The Office of International Affairs will request a prevailing wage for the position from the Department of Labor National Processing Center in Washington D.C. using the information from the approved position description provided by the department. The current DOL processing estimate is 3-5 months. 
   Once the prevailing wage determination is returned, the Office of International Affairs will ensure that DOL prevailing wage regulations are met. If the prevailing wage comes back lower than the actual wage offered to the employee, the Office of International Affairs will email the department the completed LCA. 
   If the prevailing wage determination comes back higher than the actual wage offered by the department, the Office of International Affairs will discuss options with the department. The case cannot proceed until this issue is resolved.
3. Labor Condition Application (LCA) Posting: When the Office of International Affairs sends the completed LCA form via email attachment to the department, it is necessary to print out and post two photocopies of the LCA in the locations previously specified on the H-1B Department Form. IMMEDIATELY notify the Office of International Affairs by email of the starting and ending dates of the posting of the LCA (must be posted for a minimum of 10 whole business days).

United States Citizenship and Immigration Services

Estimate: 15 days for premium processing; 8-11 months for regular processing.

1. Preparation of I-129: The Office of International Affairs will complete Form I-129 and send the entire H-1B petition to USCIS. The Office of International Affairs will then send a copy of the petition to the department for its records. It takes several months from the date of filing the petition before the Office of International Affairs receives an approval notice from USCIS. Please note, however, that USCIS processing times can vary drastically from case to case.
2. Approval: Once the approval notice arrives, the Office of International Affairs will send a copy to the department and keep the original in its files, which can be borrowed as needed by the employee. If in the United States, the employee will receive a copy of the petition and the new I94 portion of the approval during an appointment with the Office of International Affairs Coordinator handling the case. However, if the employee is abroad at the time of approval, the Office of International Affairs will forward the original approval notice along with a complete copy of the H-1B petition to the employee. The employee must return the original approval notice after their arrival in Columbus.

USCIS requires all applicants to indicate whether the work being done is regulated by the U.S. Export Controls.

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In order to sponsor an employee for H-1B nonimmigrant worker status, the Ohio State hiring department agrees to the following guidelines and governmental regulations:

1. The Department will read all materials in this packet and all future documents and correspondence related to this case.
2. The Department will post the Labor Condition Application (LCA) for 10 business days in two conspicuous locations at the intended place of employment.
3. The Department agrees to the terms of the labor condition application for the duration of the employee’s authorized period of stay for H-1B employment and will pay the H-1B employee the amount listed on the certified Labor Condition Application form, which must be 100% of the prevailing wage for the position or the actual wage, whichever is higher, throughout the authorized period of H-1B employment.
4. For any PART-TIME positions, the Department MUST, if one does not already exist, develop a system to track and keep records of actual hours worked, for each day and each week, regardless of whether the employee is paid a fixed salary, or such tracking will not be done for U.S. workers.
5. For any PART-TIME positions, the Department will pay the alien the required hourly wage for each and every hour worked, which may not be less than the number stated on Form I-129 and approved by USCIS.
6. The Department will continue to pay the required wage, per item (3), even during nonproductive time that is due to a decision by the Department (e.g., lack of assigned work, training periods, etc.), within the authorized period of H-1B employment.
7. The Department will inform the Office of International Affairs of any elective employee unpaid Leaves of Absence prior to each leave to ensure compliance with immigration regulations.
8. The Department agrees to offer the employee benefits and eligibility for benefits on the same basis as U.S. workers.
9. The Department agrees to provide working conditions for the employee that will not adversely affect the working conditions of workers similarly employed, and which are afforded to similarly employed U.S. workers.
10. The Department will accept liability for the reasonable costs of return transportation of the employee abroad if the employee is dismissed from employment by the department (for any reason) before the end of the period of authorized H-1B stay (this normally constitutes the cost of a plane ticket).
11. The Department will, in conjunction with the employee, complete and sign a Departure Form, which the employee will give to an Office of International Affairs advisor by appointment.
12. The Department will initiate paperwork for any EXTENSION of the H-1B employee’s authorized period of employment SIX MONTHS before the current authorized period of H-1B employment ends.
13. For tenure-track faculty positions, the Department will contact Ohio State immigration attorney Mark Hedien (hedien.1@osu.edu) within six months of the offer letter date.
14. The Department will contact the Office of International Affairs to begin a new H-1B for the employee when there is a substantive change in the terms of the person’s employment, including but not limited to: change in location of employment; salary reduction; change from full-time to part-time or part-time to full-time status; change in position title or responsibilities.

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There are two steps required by the U.S. Department of Labor (DOL) in the H-1B process. The first is the actual wage rate. The wage offered to the H-1B cannot be less than that offered to other employees with the same job/duties and similar experience and qualifications. The second is the prevailing wage. The H1B cannot be paid less than the prevailing wage determination. The employer must pay the higher of these two.

Actual Wage Rate C.F.R. 665.731(a)(1) {Code of Federal Regulations} 

The actual wage is the wage rate paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question. In determining such wage level, the following factors may be considered: experience, qualifications, education, job responsibility and function, specialized knowledge and other legitimate business factors. Where there are other employees with substantially similar experience and qualifications in the specific employment in question—i.e., they have substantially the same duties and responsibilities as the H-1B nonimmigrant—the actual wage shall be the amount paid to these other employees.

Prevailing Wage 

The Office of Legal Affairs at The Ohio State University has determined that Ohio State nonimmigrant employees must have a “safe harbor” wage source for the prevailing wage. In a DOL audit, this guarantees acceptance of the prevailing wage determination as correct, without challenge. A prevailing wage determination by the Department of Labor National Processing Center meets the criteria for safe harbor. 

Documentation C.F.R. 655.731(b)(1 and 2) 

The department shall develop and maintain documentation sufficient to meet its burden of proving the validity of the wage… The documentation shall be made available to DOL upon request. Documentation shall also be made available for public examination… The employer shall also document that the wage rate paid to the H-1B nonimmigrant is no less than the required wage rate. The documentation shall include information about the employer’s wage rate for all other employees for the specific employment… at the place of employment.

In addition to payroll data required…, the employer shall retain documentation specifying the basis it used to establish the actual wage. The employer shall show how the wage set for the H-1B nonimmigrant relates to the wages paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question… 

This means the department must retain and be able to provide written documentation to DOL with a complete explanation of the system used to set the actual for all employees in the specific employment in question.

Part-Time Employment

For all H-1B part-time employees (less than 40 hours per week) submitted to DOL and certified on the LCA, regulations require employers to keep records of “hours worked each day and each week by the employee.” A copy of the system used to keep track of these hours must be submitted to the Office of International Affairs with the petition documents. Hourly employees must be paid at the hourly wage listed on the LCA for all hours worked.

The U.S. Department of Labor (DOL) requires that wages paid to international workers do not depress or jeopardize the wages of U.S. workers. Therefore, the H-1B employee cannot be the least paid compared to others with similar years of experience and qualifications without a valid explanation.

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A checklist of documents and forms to be reviewed and submitted as part of the H-1B process.

To be uploaded by the department

• PDF of the Approved Requisition
• Department Agreement Form
• Export Control Form
• Actual Wage Worksheet
• Approved position description
• For part-time positions, a copy of the time sheet that will be used to track hours
• Letter of Support addressed to USCIS
• I have ensured that the letter of support and the degree the employee holds match the position requirements stated on the approved position description
• If you have communicated with an Office of International Affairs immigration coordinator regarding this case, please include copies of any relevant emails

To be uploaded by the employee

Employee Checklist with supporting documents. Documents will include:

1. Diploma and Transcripts (most recent)
2. CV (Updated)
3. Clear Copy of Passport Pages
4. If currently in the United States: clear copies of both sides of the paper I-94 card OR if the last entry to the United States was registered electronically, a copy of the electronic I-94 card (cbp.gov/I94) and a copy of the last entry stamp in the passport
5. In addition, all foreign nationals will need to include additional documents, depending on their status. Please refer to the Employee Checklist to see what is required. If you have questions as to what these documents look like, please see our Sample Document Packet on our web site.

To be hand delivered to the Office of International Affairs

• H-4 Dependent documentation (if applicable)
  • Check for $370 made out to Department of Homeland Security
  • Completed Form I-539 (download from uscis.gov under “Forms”)