Frequently Asked Questions
What is the difference between an H-1B Visa and Permanent Resident status?
Permanent Resident Status
- Permanent Residents are not limited in the amount of time they are allowed to legally remain in the United States.
- A Permanent Resident (or "green") card allows a person to work in any job or industry anywhere in the U.S. or its territories.
- Permanent Residents can come and go from the U.S. at will as long as their card has not expired and they have a valid passport.
- Permanent Residents can apply for U.S. citizenship after 5 years, (or 3 years if married to a U.S. citizen) assuming they have no serious criminal convictions.
- Permanent Residents are generally given more leniency than an H-1B visa holder if they commit a crime in the U.S, depending on the severity of the crime.
- Permanent Residents are generally given the same rights and privileges as U.S. citizens except for the right to vote.
H-1B Visa Status
- H-1B visas are temporary, non-immigrant visas that are typically issued for a maximum of six years in two three-year allotments.
- Only those positions that require at least a bachelor’s degree in a particular field are eligible for H-1B visa sponsorship. In addition, the employee to be sponsored must have that degree.
- H-1B visas are work visas, and employment of the foreign national is limited specifically to the sponsoring employer. The visa holder cannot change jobs or move elsewhere without also changing their visa.
- H-1B visa holders must have a valid H-1B visa stamp placed in their passport from a U.S. consulate abroad, (not applicable for Canadians) and their traveling is limited to the dates specifically identified on the visa stamp. Some H-1B holders are only allowed a certain number of trips in and out of the U.S. during the period that the H-1B visa is valid.
- H-1B visa holders must first obtain their Permanent Resident or "green" Card and then can apply for U.S. citizenship after 5 years, (or 3 years if married to a U.S. citizen) assuming they have no serious criminal convictions.
- H-1B visa holders are under strict scrutiny and can have their visa revoked and be deported for any simple or lesser criminal matter such as a DUI.
- H-1B visa holders are considered “guests” of the country and cannot take part in many of the rights and privileges given to permanent residents.
What does the petition do for my employee?
Filing a petition shows that you have the intent to hire the employee upon the approval of the petition.
- By sponsoring a candidate for an H-1B visa, the involved hiring department at Pace promises the USCIS that it will pay the employee the prevailing wage stated in its petition and, if Pace decides to let the employee go prior to the expiration of the H-1B petition time (a maximum of three years initially, with the possibility of an extension for another three years), then the hiring department at Pace is responsible for the employee’s transportation back to his home country. If the employee continues to work for Pace and is not prematurely let go, Pace has no obligation to the employee that is any different from any other employee in the absence of an employment contract, except, to continue to pay at least the prevailing wage specified in the petition.
- By sponsoring a candidate for permanent resident status, the employer provides the employee with a “place in line” to immigrate to the United States permanently.
- DOL – U.S. Department of Labor
- LCA – Labor Condition Application
- USCIS – United States Citizenship and Immigration Services
The H-1B Visa Process
Filing a labor condition application (LCA) with the U.S. Department of Labor to certify that Pace will be paying the employee at least the prevailing wage for the job
- To obtain the certification, Pace must provide the immigration attorney with the proposed salary and a job description. Once the attorney determines what the prevailing wage is, they will submit the LCA to the DOL electronically. DOL will certify the LCA in 7 business days or less.
Filing a petition with the U.S. Citizenship and Immigration Services to obtain H-1B visa status for the employee
- The certified LCA, USCIS forms and Pace’s letter in support of the petition
- The employee will be asked to provide his immigration documentation, his academic credentials, and some basic information.
- The petition is filed with the USCIS – It is currently taking the office about 5 months to process H-1B petitions. Premium processing service is available when necessary. For an additional $2,500 filing fee, USCIS will process the petition in 15 calendar days or less.
The Permanent Residence Process
Pace must file a request for a prevailing wage determination
- Provide the DOL with a job description, and the requirements for the position. After about 6 or 7 months, the DOL will send back their determination.
- Once Pace has the prevailing wage determination, it begins a recruitment process to demonstrate to the DOL that it could not locate a qualified U.S. worker for the position.
Filing the labor certification (or “PERM”) application with the DOL
- If there is no audit by the DOL, the PERM application is certified in 6 to 7 months. If the case is selected for an audit, then this part of the process may be delayed for a year or more.
Filing an immigrant petition with the USCIS
- Once the PERM application is certified by the DOL, Pace can file the I-140 Immigrant Worker petition with the USCIS.
- This must be filed within 180 days of certification of the PERM application by the DOL.
- It is currently taking the USCIS about 5 months to approve the petitions.
Employee files an Application to Adjust Status with USCIS
Either simultaneously with the Immigrant Worker petition, or at a later time, depending upon quota availability, the employee will file an application to adjust status to that of a lawful permanent resident with the USCIS. This application takes approximately 10 months to a year to be processed by USCIS.
The permanent residence case can be started before or after a H-1B petition is filed. Pace does NOT have to wait until the employee is in his or her second year of H-1B status. It is best to be certain to file the PERM application with the DOL at least one year before the employee’s H-1B visa status maxes out (six years) in order to be able to continue to extend his H-1B status while awaiting the successful conclusion of the permanent resident process.
The PERM application, recruitment costs, and legal fees associated with the PERM application must be paid by the hiring department. All other fees may be paid by the employee or by the hiring department, whichever you prefer.
*Per the University’s Policy on Hiring Foreign Nationals, it is the involved hiring department, NOT Pace University as a whole that is expected to incur the cost of sponsoring employees for an H-1B Visa or Permanent Residence.