H-1B Application Process
Applicants for H-1B status may not begin employment at the University while the petition is in process, except in the case of Extension of Status or Portability petitions. The employee may not be placed on payroll until the H-1B petition has been approved. United States Citizenship and Immigration Services (USCIS) estimates the average processing time to be 30 - 120 days.
Request for Filing an H-1B Petition
To begin the H-1B petition process, the department must submit the following documents to International Student and Scholar Services (ISSS):
- H-1B Request Form
- H-1B Memo
- Copy of the job announcement or advertisement
- Actual Wage Form
- All documents requested from the current/prospective employee
Step 1 - Determining the Prevailing Wage
Avg. time to completion: 1 - 15 days
Using information provided by the department, ISSS requests a prevailing wage determination from the Colorado State Workforce Agency (SWA). The prevailing wage is the current rate for employees in similar positions in the same geographical area. In determining the prevailing wage, the actual wage must also be determined. The actual wage is the amount the department is currently paying other employees with an equivalent title, job responsibilities, and experience. The wage offered to the prospective employee must be the higher of the prevailing wage or the actual wage.
If the wage offered to the employee is lower than the prevailing wage, the department has three options:
- Increase the wage to meet the prevailing wage
- Withdraw the offer of employment
- Request a wage survey
A wage survey uses an alternate source of wage data to determine the prevailing wage. These data are provided by outside organizations for a fee. The results of the prevailing wage from the wage survey are not guaranteed to be lower than the state-determined rate. In the case of an investigation by the Department of Labor, this wage may be challenged.
Step 2 - Posting the Labor Condition Application (LCA)
Avg. time to completion: 1 day to file, 10 days to post
The Labor Condition Application (LCA) is an application to the U.S. Department of Labor (DOL) in which the University agrees to several conditions regarding wage, working conditions and notification of filing. If the LCA is certified by the DOL, Form I-129 may be filed. If the LCA is denied, any errors must be corrected and the application resubmitted for evaluation.
The department must post copies of the LCA in two prominent locations for ten consecutive business days, then return them to ISSS. Our office will forward the required forms for posting the LCA to the department. The positing is not to solicit additional applications for the position, but instead to give public notice of the department's intention to hire a foreign employee, giving aggrieved parties an opportunity to respond.
Step 3 - Submitting Form I-129 (Petition for a Non-Immigrant Worker)
Avg. time to completion: 30 - 120 days
Once the LCA has been approved and posted, Form I-129 may be filed with USCIS. Form I-129 requests permission for the University to hire or extend the H-1B status of an employee. The department must pay the application fee ($320) to USCIS by entering a transaction in Banner (Vendor ID: DHS). When entering the transaction, choose the California location for DHS, indicate an enclosure, and forward the Direct Pay Cover Sheet to ISSS. For new H-1B employment at the University, the department must also pay an additional fee ($500) for a fraud detection and prevention check. This fee is paid separately from the filing fee for Form I-129.
Notification of USCIS Action
USCIS will notify ISSS directly regarding the status of H-1B petitions. If the petition is approved, USCIS will send Form I-797, Notice of Action, to us. We will then notify you that the approval notice is ready to be picked up. We strongly recommend collecting the approval notice in person, rather than using campus mail, in order to avoid losing the document.
If USCIS requires additional information to adjudicate the petition, they will send an RFE (Request for Further Evidence) to ISSS outlining the information needed before a decision can be made. RFE's are sent for a number of reasons, including missing documents, unclear or vaguely worded job descriptions, and questions about the applicant's lawful immigrant status in the United States. A decision is generally received within 30 - 60 days of responding to the RFE.