Suite 140 Fenster Hall

             New Jersey Institute of Technology

             Tel: 973-596-2451

             Fax: 973-596-5450

DATE: 2005

SUBJECT: FILING H-1B VISA PETITIONS


Background

The New Jersey Institute of Technology (NJIT) petitions for H-1B visas on behalf of certain prospective employees. The H-1B classification applies to an alien who is coming to the U.S. to be employed in a "specialty occupation".

A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations. Consequently, all full-time faculty and staff members whose positions require an advanced degree and/or a bachelor’s degree and advanced training may be eligible to apply.

Please note that it is the United States Citizenship and Immigration Services (USCIS) which is responsible for the final determination of whether an application involves a specialty occupation, and if the particular alien, for whom H-1B status is sought, qualifies to perform services in that occupation. Any prospective employee, who is not a U.S. citizen or permanent resident, should not be permitted to perform any work and/or services at NJIT for which compensation is expected until the H-1B visa is obtained by NJIT on their behalf.

On October 17 and 30, 2000, President Clinton signed into law several bills which significantly changed the H-1B program. Prominent among these bills was the American Competitiveness in the Twenty-First Century Act (AC21) which increased the annual limit on the number of aliens permitted to receive H-1B status to 195,000 for 2001, 2002 and 2003. After that date the cap reverted back to 65,000. However, AC21 exempts H-1B workers who are employed by or have an offer of employment from institutions of higher education.

Under current law, an alien can be in H-1B status for a maximum period of six years granted by USCIS, for a maximum of 3 years for any single petition. The approval may not exceed the validity period of the LCA. AC21 gives extensions of H-1B status in one-year increments to H-1B aliens who have an employment-based immigrant visa petition or application for adjustment of status pending.


Procedure

Labor Condition Application (LCA): Prior to filing with the USCIS on behalf of an alien in a specialty occupation for an H1-B visa (Form I-129 petition), NJIT must file an LCA with the Department of Labor (DOL) attesting to several items, including:

(1) The employer is offering and will pay the alien the greater of the actual or prevailing wage paid to all other workers with similar experience and qualifications for the specified employment in the area of employment;

(2) The employer will provide working conditions for the alien that will not adversely affect the working conditions of workers similarly situated; and

(3) There is no current strike or lockout as a result of a labor dispute in the occupational classification at the place of employment.

The DOL has instituted a new LCA-program. The LCA can be downloaded from the internet and completed directly on the computer screen. The Office of International Students and Faculty will submit the LCA on behalf of any applicant and/or department after being provided with the applicant's complete name, title/position, dates of intended employment and salary.

LCA’s for non-faculty positions: For all faculty positions (whether regular or post-doctorate), NJIT is not required to obtain an independent salary determination from the DOL since faculty salaries are determined by the provisions of collective bargaining agreements. However, for administrative positions NJIT must seek an independent salary determination from the DOL (Trenton). This will increase the approval time for the LCA.

Processing Time: Given the large increase in the volume of applications, the USCIS has had difficulty maintaining its current processing goal of 90 days for H-1B petitions. Please be advised that the entire process of obtaining an approved LCA and H-1B Visa may take up to six (6.0) months. This includes an approximate 4-week processing period for internal documents.