H-1B Status

This page describes the H-1B petition process for applicants and their hiring departments. Montclair State University processes H-1B petitions for full-time tenure-track faculty and full-time permanent staff, and provides advice on issues related to H-1B status, including travel and changes of status.

With a few exceptions, the H-1B process should be initiated approximately seven months prior to the date the employee is expected to begin or continue (for an extension) work in H-1B status. Approval of H-1B immigration status (in the form of a hard copy of the I-797 Approval Notice from U.S. Citizenship and Immigration Services) must be obtained before an individual can be placed on Montclair State University payroll and begin work unless the individual possesses an immigration status that allows employment while the H-1B petition is pending.

Information and Responsibilities

Qualifying for H-1B Classification

• The position offered must qualify as a “specialty occupation,” which is an occupation that requires “(A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”

• In order to qualify as a “specialty occupation,” the position of employment must require a minimum of a bachelor’s degree in a particular field (the job ad must be more specific than “a bachelor’s degree in a related field”), and the applicant must possess a bachelor’s degree or its equivalent in a specific field which is 1) specified in the job description or 2) closely related to the field(s) mentioned in the job description. Additionally, the applicant must possess all of the required qualifications listed in the position description. Applicants with a bachelor’s degree equivalence will be required to provide substantial supporting documentation. 

Additional Information on H-1B Classification

• H-1B employment is, by nature, “temporary,” even if the employee’s job is considered by the university to be permanent.

• H-1B status is employer-specific, so an H-1B employee may only work for an employer who has an approved (or sometimes, pending) H-1B petition on their behalf. However, an employee may work for more than one employer as long as each employer has an H-1B Approval Notice for the applicant.
• Montclair State University is not subject to the H-1B cap which governs the annual number of H-1B petitions that can be submitted by for-profit companies, among others. Universities, research organizations, and some nonprofit organizations are exempt from the cap, which means that the university can file a petition at any time during the calendar year.
• H-1B immigration status recognizes dual intent, which means that an H-1B employee may apply for Lawful Permanent Residence (LPR) while in H-1B status. Applicants should advise the University as to their future plans when initiating the H-1B process so that the Director of International Employment and Immigration may provide proper guidance.

• Employees can be in H-1B status for up to three years at a time, for a total of six years, (excluding any extensions based on an Approved Form I-140) but an employer may not sponsor an applicant for a period of time that exceeds a reasonable assurance of funding. If funding can only be assured for one year at a time, Montclair State will have to submit a new H-1B petition each year. For more information about funding, please consult Elizabeth Gill, Director of International Employment and Immigration, at gille@montclair.edu.

• If the applicant was previously in the United States as a J-1 exchange visitor or J-2 dependent and is subject to the two-year home country physical presence requirement (INA 212(e)), the person has two options before an H-1B petition can be submitted on their behalf: fulfill the two-year requirement or be granted a waiver by USCIS.
• An H-1B employee for whom Montclair State has filed a timely application for an extension of H-1B stay (prior to the current H-1B expiration date) can continue employment while the request for extension of stay is pending with USCIS for a period of up to 240 days beyond the expiration of the prior period of authorized stay as long as the following conditions are met:
  • The application must be received by USCIS before the expiration of the current period of H-1B status (as per 8 CFR 214.1(c)(4)) AND
  • The H-1B employee must continue to work only for the same employer that has filed the extension of stay petition on the employee’s behalf.
• Upon approval of the H-1B petition, the H-1B employee will be given a copy of their approved Labor Condition Application (LCA), which lists the employee’s actual wage (what they are actually being paid). If the employee is not receiving the actual wage listed on the Labor Condition Application (or higher), they should contact the Director of International Employment and Immigration immediately.
• H-1B employees may only work in the position for which they have an I-797 Approval Notice from USCIS. If there will be any significant changes to an employee’s job title, duties, work location, or salary, a new H-1B may need to be processed before the employee’s work or pay may be altered.

The H-1B Petition Process

1. The hiring department will request the required check(s). The time for processing check requests is determined by the Division of Finance and Treasury, but should be assumed to be two weeks. The checks do not need to cut before beginning step 2, so steps 1 and 2 can proceed concurrently.

2. The applicant and hiring department must submit the H-1B application package to Elizabeth Gill, Director of International Employment and Immigration. The application includes all the required documents listed under “Required Documents from Hiring Department” and “Required Documents from Applicant.”

It usually takes about two weeks for the department and the applicant to gather and prepare documents. However, only the “Required Documents from Hiring Department” are needed for step 3, so the applicant may gather documents while step 3 is being processed.

3. The university will file a Request for Prevailing Wage Determination with the Department of Labor (DOL) to guarantee that Montclair is paying the wage required for the individual’s position.

The time needed to obtain a Prevailing Wage Determination from the DOL is approximately 120 days. If the applicant’s position at Montclair State is covered by a currently valid collective bargaining agreement (through a union), this step can be skipped.

4. The University will submit a Labor Condition Application (LCA) to the Department of Labor (DOL) to affirm that Montclair will meet the prevailing wage and other legal requirements of the H-1B.

The DOL takes up to two weeks to certify the LCA.

5. After receiving the LCA certification, the Director will prepare the H-1B petition for filing. The processing time from the time of the LCA certification to the filing the H-1B petition is two weeks.

6. The Director will submit the H-1B petition by mail to USCIS, and USCIS adjudicates the application.

With premium processing (additional $2500), an application is adjudicated in no more than 15 calendar days, but please add three days for shipping the petition to USCIS. With standard processing, the application may take 9 months or longer to be adjudicated. However, premium processing may be requested at any point while the H-1B petition is pending.

7. If the petition is approved, the Director will receive notification from USCIS.

8. The paper I-797 Approval Notice will arrive in the mail typically within 1 week after USCIS notifies the University of the approval.

9. The Director will contact the applicant to receive the I-797 Approval Notice, participate in H-1B orientation, and process or re-process their I-9.

If the applicant is living abroad, the Director will instead ship the I-797 Approval Notice to the applicant and guide them through the visa application process. The H-1B orientation and I-9 will take place once the applicant arrives in the U.S.

The Director will contact the applicant within 1 business day of receiving the paper notice if the applicant is unable to work due to the absence of work authorization. The Director will provide the H-1B employee with a copy of their I-797 Approval Notice and a full copy of the petition filed with USCIS, including the original certified LCA. The rules and responsibilities for maintaining H-1B status are reviewed in the H-1B orientation meeting.

Processing Times

H-1B processing times are outlined in the above section. To allow for sufficient time for university and government processing, the H-1B process should be initiated with the Director of International Employment and Immigration approximately 3-6 months (depending on whether regular or premium processing will be used) prior to the proposed employment/H-1B start date or 7 months prior to the end date of the employee’s current period of H-1B status. If a complete application package is not submitted in a timely manner, the University cannot guarantee that the application will be processed in time for the employee to start or continue work on schedule. Please note that processing times may vary depending on current caseload.

Please note: Montclair State University requires that all applications for employment-based immigration status be approved and processed by the Office of University Counsel.

Filing Fees

The hiring department or college/school is responsible for paying all H-1B filing fees with the exception of the fee for premium processing and for Form I-539 for dependents (when applicable). All fees must be paid by separate checks made payable to the “U.S. Department of Homeland Security.” The fee requests must be made using the H-1B Invoice. Once the checks are cut, please have them hand-delivered to the Director of International Employment and Immigration in the Office of University Counsel with the employee/prospective employee’s name written on the outside of the envelope or shipped using the directions on the H-1B Invoice; please do not put checks in interoffice mail. The H-1B filing fees are:

• $460 Form I-129, Petition for a Nonimmigrant Worker – Paid by hiring department or college/school only
• $500 for Fraud Prevention and Detection Fee (for an initial H-1B at Montclair State only) – Paid by hiring department or college/school only
• $2,500 for Form I-907, Premium Processing Fee – Paid by hiring department or applicant. For an additional $2,500, USCIS will adjudicate (approve, deny, or send a Request for Evidence) an H-1B petition within 15 calendar days of receipt of the mailed petition.
• $370 for Form I-539 application for H-4 dependents (add I-539A if more than one dependent will apply, but only one fee is required) – Paid by applicant, if they have dependent(s)

Required Documents from Hiring Department

• Submit the prospective or continuing H-1B employee’s job description, H-1B Prevailing Wage Request Form (PDF), and H-1B Actual Wage Form (PDF) to Elizabeth Gill, Director of International Employment and Immigration.

• Request check(s) from General Accounting, payable to the “U.S. Department of Homeland Security” using the H-1B Invoice.

• Create a draft H-1B Letter of Support, and send it to the Director of International Employment and Immigration for review. The Director will make sure it is signed by the appropriate person.

• If requested by the Director, post a hard copy of the applicant’s Labor Condition Application (LCA) in a conspicuous location in the hiring department and retain posting in aforementioned location for 10 calendar days.
• Submit the Deemed Export Control Certification directly to Montclair’s Office of University Counsel. Please contact the Director of International Employment and Immigration for assistance.

Required Documents from Applicant

The applicant/employee must submit all of the following forms and documents as one complete package to Elizabeth Gill, Director of International Employment and Immigration. All confidential documents should be submitted via File Hawk by current employees.

H-1B Forms

What follows is a summary of the forms needed to complete the application process for current and prospective H-1B employees.

Forms for the hiring department, college, or school to complete:

• Deemed Export Control Certification
• H-1B Actual Wage Form (PDF)
• H-1B Prevailing Wage Request Form (PDF)
• H-1B Invoice
• H-1B Sample Letter of Support

Form for the current or prospective employee to complete:

• H-1B Applicant Information Form (PDF)