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 the Office of Legal Affairs via e-mail at legalaffairs@udayton.edu or by phone at 937-229-4333.  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

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.