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OIA Policy for Hiring Employees in F, J or H status

Effective August 2011
Individuals applying to Jefferson for some non-clinical training and entry level research positions have been requesting H-1B status to begin employment rather than using F-1 Optional Practical Training (for recent graduates of US  colleges and universities) or the J-1 for research scholars. This memo outlines updated requirements for requesting a particular visa status for new employees.

Students graduating from US institutions who are seeking initial employment at Jefferson should be advised to apply in a timely fashion for Optional Practical Training (OPT). The Office of International Affairs (OIA) will no longer process H-1Bs for individuals who are eligible for Optional Practical Training. These individuals need to begin employment with Jefferson using their OPT for a variety of reasons. Among those reasons are the opportunities it provides for the department to determine if this individual should be sponsored for H-1B status in the future.

Individuals coming in from abroad to assume paid research positions, including a Postdoctoral Research Fellowship, must use the J-1 status to enter and begin their training or employment.  This allows the department an opportunity to determine if this individual should be sponsored for an H-1B at a later time.

Benefits to the Department:
Why OPT or J1 Status may be the best option

Costs: The H-1B is a heavily regulated and scrutinized visa classification that is reserved for professional employees. When processing an H-1B, a department incurs a minimum cost of $820 in US Citizenship and Immigration Service (USCIS) fees.  In addition, since processing of an H-1B petition at USCIS can take three or four months or more, it is often necessary for the department to invest an additional $1000 in the Premium Processing fee to ensure that the H-1B petition is processed in a matter of weeks rather than months. Moreover, we have been notified by USCIS that these fees will increase in the near future.

Liabilities

Salary: In addition to the costs involved in the H-1B application, the Jefferson department assumes some liability. The Department of Labor (DOL) is very involved in the H-1B process. The petitioning department is required to pay the incoming employee a salary that DOL has deemed appropriate for the position. This salary may be greater than what is generally required by Jefferson’s Department of Human Resources or it may be higher than that which is paid to other employees in a similar position in the department.

Early termination and the return home fare rule: If the H-1B employee is released prior to the time requested on the approved petition, the department may be required to pay that individual’s return plane fare to the home country. OIA must be notified prior to the end of employment. The H-1B petition filed for this employee must be withdrawn immediately with the USCIS. If the petition is not withdrawn, Jefferson continues to be liable for paying the individual until the petition is withdrawn.

Audits: In recent months, USCIS has been making unannounced visits to H-1B employers, requesting to review a specific H-1B petition and interview the individual sponsored for the H-1B position. This process is often disruptive to the workplace and stressful for the employee. Jefferson has had at least four such visits in the last several months.

H-1B vs. J1 vs. OPT

Employing an individual in OPT or J-1 status does not involve any additional cost to the Jefferson department.  The salary is determined by the department in conjunction with Jefferson’s Department of Human Resources. The time required to process a J-1 DS 2019 form is often less than two weeks. A minimum of eight weeks is required to prepare an H-1B petition, after which it is submitted to USCIS for approval before the employee is eligible to begin employment with Jefferson. Individuals who apply for F-1 Optional Practical Training in a timely manner will normally be in possession of the Employment Authorization Document (EAD) at or about the time they complete their study.

Employment in H-1B status is job and employer specific. As soon as the employment ends, the individual in H-1B status risks becoming illegally present in the US. Individuals in OPT and to some extent in J-1 status have greater flexibility moving between employers and maintaining legal status while in short periods of unemployment.  Initial employment in F-1 OPT and J-1 status allows both the employer and the employee time to determine if the job is a good fit and if both the employer and employee want to continue the relationship. OIA will work with both the department and the individual to transition to the H-1B status when it is appropriate. Planning several months ahead of the H-1B start date allows the department to avoid the extra cost of Premium Processing (currently $1,000). During this time the employee will also learn about issues surrounding travel, the effect of the H-1B status on a spouse’s employment, and many other issues that surround the change to H-1B status.

Why should the individual wish to begin employment in J1 status or in Optional Practical Training?
Time spent in F-1 OPT or J-1 status lengthens the time available to the individual to make the transition from non-immigrant to immigrant status. The H-1B is neither a fast-track to nor a guarantee of permanent residency. The permanent residency process has become extremely lengthy, and in many cases, it takes several years for the individual to build the background, experience, publishing record and national and international recognition that is required to make an application in one of the higher level Employment Based (EB) categories. The six-year limit for the H-1B is often not enough time to allow for the individual both to achieve the reputation and credentials required to make an application in a higher level EB Category and progress far enough in the process to be allowed to remain and continue employment in the US.

Please feel free to contact OIA if you have any questions regarding this information. 215.503.4023   

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