U.S. Citizenship & Immigration Services (USCIS) Issues
- Termination of H-1B Employment
- H-1B Portability
- 240 Day Rule for H-1B Extensions
- H-1B Date Selection
- Changes in Terms of Employment
Termination of H-1B Employment
The university is responsible for the costs of reasonable return transportation to the employee’s country of citizenship or last country of residence if the H-1B employee’s employment is terminated prior to the expiration of the H-1B petition. Only if the H-1B employee terminates the employment relationship is the university released from this obligation.
The university is required to report the termination to USCIS, and to withdraw the LCA from the Department of Labor (DOL). Therefore, the employing department is required to notify the OIS in writing of any changes in the employment so that appropriate actions can be taken with USCIS and DOL.
Since the H-1B is the employer’s application, H-1B status is employer specific. If the university wishes to employ someone who is currently in the U.S. in H-1B status with another employer, UM must file an H-1B petition on the intended employee's behalf. Once the OIS has filed the H-1B petition with USCIS, and has received a receipt notice documenting timely filing of the H-1B petition, the H-1B worker can begin work at UM for 240 days from the requested start date of the H-1B petition. This provision is called H-1B portability, and is useful because the university does not need an approval from USCIS in order to legally employ the worker. As such, premium processing is not necessary for most H-1B concurrent and transfer petitions. H-1B portability only applies if the H-1B employee continues working for their current employer until UM has had the opportunity to file an H-1B petition with USCIS.
240 Day Rule for H-1B Extensions
For current UM H-1B workers who are extending their H-1B status, UM can continue to employ the H-1B worker for 240 days past the expiration of the prior petition as long as UM files the extension with USCIS before the expiration date. As such, premium processing is not necessary for timely filed H-1B extensions unless international travel is planned.
H-1B Date Selection
Many questions arise about selecting start and end dates for H-1B petitions. Date selection is a very important part of the H-1B process. The OIS takes date information directly from the request form that the employing department completes.
- Start Date
In the case of employees who are not currently employed by UM, whether outside the U.S. (consular processing) or inside the U.S. working for another employer (H-1B transfer, concurrent H-1B employment), the H-1B start date should be the start date of the academic appointment, or the hire date for staff positions. In selecting the employment start date, departments should factor in the time it takes to obtain receipt notices and/or approvals by consulting our H-1B timing and fees chart.
In the case of employees currently working for UM either as an H-1B employee or pursuant to a work authorization from another immigration status, the start date is usually the day after the current work authorization expires. For someone currently working for UM pursuant to another immigration status (i.e., F-1 OPT, J-1, etc.), an earlier start date for the H-1B can be selected to accommodate travel plans if necessary. The OIS must be apprised of concrete travel plans in advance of filing the H-1B petition (i.e., date of departure, date of return) to select the correct dates.
- End Date
We can petition up to a full three (3) years for an H-1B petition, subject to regulatory limits. H-1B status is limited to six (6) years. The OIS will review the documentation submitted with the H-1B request to determine how much time is available to a prospective H-1B employee.
If the university terminates the employment prior to the expiration of the H-1B petition, the employing department is responsible for providing return transportation abroad for the employee. The employing department is required to notify the OIS in writing of the termination date so that we can withdraw the Labor Condition Application (LCA) and the H-1B petition.
Changes in the Terms of Employment
The H-1B is employer specific, job specific, location specific, and salary specific. If there are any changes to the job title, job responsibilities, salary and/or the location of the employment, please contact the OIS to obtain advice.