H-1B and E-3 Information and Requirements

Actual Wage Determination

The Actual Wage Determination is the range paid to all individuals in a department or unit with similar experience and qualifications. An H-1B or E-3 worker must be paid within the range of wages currently paid to comparable employees.

Change of status

H-1B or E-3 status may be obtained by applying for a change of status within the U.S. if the foreign national beneficiary is already in a valid, nonimmigrant status.  If the foreign national is overseas, the H-1B sponsor must request that USCIS send an approved petition to the U.S. consulate in the foreign national’s country of residence. This will enable the individual to obtain an H-1B visa to enter the U.S. for a fixed period of time. Please see the E-3 Classification webpage for more information about this status.

Concurrent H-1B or E-3 Status

It is possible for two employers to petition concurrently for H-1B or E-3 status for a foreign national who will work part time with each employer. Please note, however, that both employers cannot petition for full-time employment.

Credential Evaluation of Foreign Degrees

Per USCIS regulations, all foreign degrees must be translated and evaluated for the U.S. equivalency. The following three companies provide credential evaluation services that are acceptable to USCIS, and they also satisfy the credential verification requirement, which is needed for employment endorsement by the NC State Background Check Program. One credential evaluation/verification can fulfill both the USCIS and NC State Background Check requirements. Three acceptable vendors are Evaluation Service, Inc. (which will provide “rush” service at the regular rate if you mention NC State); World Education Service; and Educational Credential Evaluators.

Early Termination

Termination of employment before the authorized end date should be reported to IE. If the NC State department or unit terminates employment for any reason before the designated end date on the H-1B or O-1 approval notice, the department or unit  is responsible for the return cost of transportation for the employee to return to the country of last residence.

Employment Limitations

There is a 6-year total time limit for H-1B status (although extensions after 6 years are possible in certain circumstances); however, the initial H-1B time period request to USCIS cannot exceed three years. This time limit is for all employment in H-1B status, irrespective of employer. Departments must only request H-1B visa status for the period of time for which there is funding available for the position. NC State departments must offer H-1B employees benefits on the same basis as U.S. workers.

E-3 status is limited to two year periods which can be renewed indefinitely.

Employment of the foreign national may not start before the approval date (in most cases) on the Form I-797, the official USCIS approval notice for H-1B status (and for E-3 status when a petition was filed with USCIS), which will be given to the employee as soon as it is received by IE. However, if the employee currently has valid USCIS employment authorization in another nonimmigrant status (e.g., F-1 or J-1) for employment at NC State, the employee may continue to work in that status until it expires. If USCIS has not approved a change of status to H-1B or E-3, and the prior work authorization in F-1 or J-1 expires, the foreign national must stop working and be taken off payroll until the H-1B or E-3 is approved.

Extension of H-1B Status

H-1B status can be extended in increments of 3 years or less, with the total time period allotted by USCIS being six years (with some exceptions). If an H-1B is due to expire at a specific time, the extension must be filed, but does not have to be approved, prior to the expiration of the H-1B. Upon timely filing the extension, the H-1B employee is granted, per USCIS regulations, 240 days to continue working with legal authorization. However, if the H-1B employee leaves the U.S. after the expiration of the original H-1B, that employee cannot return to the U.S. until the H-1B extension is approved and a valid H-1B visa stamp is obtained from a U.S. Consulate or Embassy abroad.

Please see the E-3 Classification webpage for more information about extending this status.

Note: Once an individual has obtained H-1B or E-3 status for employment at NC State, ANY changes in salary, FTE, site of employment, position or job duties MUST be reported to IE prior to any Human Resource System actions. In some cases, an amended H-1B or E-3 petition will need to be filed prior to any changes occurring in the appointment.

H-1B or E-3 Visa Stamp

A nonimmigrant visa is a permit affixed or stamped to a page in the passport to the U.S. Entrance to the U.S. is given under the terms and conditions specified by the particular type of nonimmigrant visa. The visa stamp does not determine how long the visitor can remain in the U.S. A valid visa is only necessary for traveling and returning to the U.S. from abroad.

Only a U.S. consulate or embassy abroad can grant or renew a visa, with a few limited exceptions.

Note: Due to increased security measures at U.S. consulates, it is not unusual for a foreign national to remain outside the U.S. for several months waiting for security checks at a U.S. consulate.  Should this occur, departments or units should contact IE as soon as possible to determine the best method of keeping the employee in status. If the employee is terminated during the wait, most likely another H-1B will have to be filed and approved to bring the employee back to the U.S. If the employee is in E-3 status, that employee can re-apply for new E-3 status at a U.S. consulate or embassy abroad.

Portability

H-1B status is portable. The sponsoring NC State department/unit must still work with IE to prepare and file our own H-1B petition with USCIS, even if the prospective employee is already in H-1B status with the current employer.

Note: The employee should not quit the position with the other U.S. sponsor until after IE has filed the NC State petition. Recent pay stubs from the original U.S. sponsor must be submitted with the NC State petition.

Premium Processing

This is an expedited method of obtaining H-1B or E-3 status from USCIS. The fee is $2,500 in addition to the regular processing fee(s), and will expedite the process from 3-10 months for regular processing to adjudication of the petition within 15 calendar days. Anyone can pay this optional fee.

Prevailing Wage

The prevailing wage is the average salary for our geographic area for the occupation in which the foreign national will work and be paid. The prevailing wage determination is made by the U.S. Department of Labor. It is important for the department or hiring unit to indicate to IE the level of education and experience required for the position, not what is held by the applicant when completing the sponsorship form.

Request for Evidence (RFE)

USCIS may send IE a request for further information to adjudicate an H-1B or E-3 petition that we have filed. If the H-1B or E-3 petition is filed via Premium Processing, the RFE may take up to 60 days for adjudication. If the H-1B or E-3 petition is filed via regular processing, the RFE can delay the case for several additional months.

USCIS Regular Processing

Per DOL and USCIS regulations, NC State departments are legally responsible for paying the USCIS filing fee of $460.00, and the one-time-only anti-fraud fee of $500.00. Checks must be drawn from an NC State account. Regular processing can take anywhere between 3-10 months, so please contact IE to get an updated estimate of the regular processing timeframe at the time of inquiry.

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