We receive many requests for general information about H-1B nonimmigrant status and H-1B visas. The information provided here is intended as very general information and an introduction to H-1B status and processes .
Q: Who is eligible for H-1B status?
A:H-1B nonimmigrant status is available for people coming into the U.S. temporarily to perform services as a professional in a “specialty occupation.”Those currently in the U.S. in a valid nonimmigrant status may be eligible to change status to H-1B without leaving the U.S. For many people considering lawful permanent residence (“green card”) in the U.S., H-1B is a good initial status.
Q: Is a J Exchange Visitor subject to the two-year home residence requirement eligible?
A :The two year home residence requirement must be satisfied or waived before one can change from J-1 or J-2 status to any other status in the U.S. (except to A or G) and before one is eligible to obtain an H, L or Lawful Permanent Resident visa. If you hold J status and are subject to this requirement, you must satisfy it or obtain a waiver of it before you can obtain H-1B status. See http://www.travel.state.gov/visa/temp/info/info_1288.html
Q: Does it matter what kind of job I do?
A: Yes, very much. You must work in a job considered to fall into a “specialty occupation” in order to qualify for H-1B status, and—of course—you must hold the appropriate degree and/or experience to qualify for the job.
Q: What is a specialty occupation?
A: U.S. Citizenship and Immigration Services (USCIS) regulations define “specialty occupation” as one that requires a “theoretical and practical application of a body of highly specialized knowledge.”The occupation must require—generally, throughout the industry (not just your employer)—a bachelor’s or higher degree (or foreign equivalent) for entry into the profession. Some occupations are well-recognized by USCIS as specialty occupations, and others are not. Examples of specialty occupations include but are not limited to teacher, professor, researcher, accountant, architect, systems analyst, computer programmer, engineer, librarian, pharmacist, journalist, social worker, and minister.
Q: Is there a limit on how long someone may hold H-1B status?
A: A person may hold H-1B status for a cumulative maximum of six years. The status is granted in periods of up to three years (you may not have all 6 years at once). Changing employers does not add to the six years of eligibility. Relatively recent developments in the law make extensions of H-1B status beyond six years available for persons who have completed certain steps towards employment-based permanent residence. Someone who has held H status for six years becomes eligible for another six years after remaining outside of the U.S. for one year.
Q: How is H-1B status obtained?
A: The employer files the petition requesting a period of H-1B authorization for the intended employee. The employer is the petitioner, and the employee is the beneficiary. The employee cannot petition for H-1B status or obtain it independently. The petition may request a change of status to H-1B for a prospective employee already in the U.S. or may indicate that the prospective employee will apply for a visa at the U.S. consulate (if required to have a visa) and enter the U.S. in order to obtain the status.
Q: How does the H-1B petition process work?
A: The employer first electronically files a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL). Once the LCA is approved (usually about a week), the employer may file the H-1B petition (including Form I-129 and supplements, extensive supporting documentation, and the approved LCA) with USCIS. If the employee is already in the U.S. and eligible for a change of status and the petition requests a change of status, the change of status to H-1B is usually granted upon approval of the petition. If the employee is outside the U.S., she/he may apply for an H-1B visa at a U.S. Consulate once the petition is approved.
Q: What documentation must be filed with the H-1B petition?
A: The following documentation is required:
- Approved LCA from U. S. Dept. of Labor
- Documentation that the job qualifies as a specialty occupation (diplomas, transcripts, proof of experience, etc.)
- Copy of the employee’s U.S. college diploma (bachelor or higher) and/or a foreign diploma with evidence that the degree is equivalent to a U.S. bachelor’s degree or higher (a combination of education, specialized training, or experience that is equivalent to a U.S. bachelor’s degree may be used to meet this requirement.)
- Copy of any license required to practice occupation in state of intended employment
- Copy of any offer and acceptance of employment or written employment contract
- Other documents may be required, depending on the job, employer, etc.
Q: How can one know if a foreign degree is equivalent to a U.S. degree?
A: An evaluation may be obtained from a credential evaluation agency.
Q: What are the filing fees for an H-1B petition?
A: See www.uscis.gov. At present, filing fees include $325.00 for Form I-129, a $500.00 “fraud detection and prevention fee,” and a training fee of either $750.00 (for employers with fewer than 25 full-time employees) or $1500.00 (for employers with 25 or more full-time employees). Higher education institutions and primary and secondary schools are exempt from the training fee.
Q: Who pays the filing fees?
A: This is a more complicated issue than it might seem-due to the wage requirements associated with H-1B. While employees are currently prohibited only from paying the “training fee,” an employer should seek legal advice about this issue if they plan to have the employee pay any fees since this may be considered a reduction of the wage. Also, a series of recent judicial precedents indicate that the employer in many circumstances is to pay all legal fees and costs for the H1B, excluding dependants’ fees and costs. Failure to do can result in fines, an order of back pay, and debarment from the H1B and permanent resident petitioning process for up to two years.
Q: Must the employer pay a certain wage to an H-1B employee?
A: In short, it is not possible to obtain H-1B status unless the employer will pay at least the “prevailing wage,” defined generally, as the average wage for the occupation in the geographic area in which the employment will occur (or the wage set by a union contract). The employer is also prohibited from paying the potential H-1B employee less than the wage paid to the other employees who hold the same position and have similar qualifications.
Q: How is the prevailing wage determined?
A: An employer may request a prevailing wage determination from the State Workforce Agency (SWA) rely upon wage data DOL’s Online Wage Library or use an independent survey if the survey meets U.S. Department of Labor requirements. The SWA will likely use the wage data from the Online Wage Library at http://www.flcdatacenter.com/
Q: How long does it take USCIS to make a decision about the petition?
A: It usually takes two to four months just for USCIS to process a petition, but this can vary widely and change frequently. If the petition is incomplete or additional evidence is required, adjunction can take longer. USCIS provides optional “premium processing” for an extra fee, which guarantees adjudication of a complete petition within 15 calendar days of filing. It also takes time to gather documents, obtain a prevailing wage determination and prepare the petition, so plan ahead.
Q: When must I decide whether or not to use “premium processing”?
A: There are obvious advantages to deciding—before the petition is filed—whether or not “premium processing” will be used, but it is possible to “convert” a petition to premium processing while it is pending by submitting Form I-907, the “premium processing” fee, a copy of the USCIS receipt notice for the petition, and any other required documents and information.
Q: When should I start talking to my employer about filing an H-1B petition for me?
A: The very quick exhaustion of the annual H-1B quota (the “H-1B “cap”) in recent years encourages job applicants, especially students undertaking Optional Practical Training (OPT) or Academic Training, to address the H-1B process with employers early and in detail and come to an agreement about it in the hiring process. Some students, for instance graduate students, may qualify for H-1B before graduating if they already hold the necessary undergraduate degree for the job. Some may qualify for another nonimmigrant classification allowing employment. Others may face a “cap gap” after OPT or AT ends but before the H-1B begins and have to take a leave of absence. All of these matters need to be need to be discussed with the employer and the necessary arrangements made.
Q: When should the employer start the H-1B petition process?
A: An H-1B petition may be submitted up to six months before the intended start date, and it is usually wise to file as early as possible. Processing often takes two to four months, and has taken even longer at some times (see https://egov.immigration.gov/cris/jsps/index.jsp for estimated USCIS processing times). Some employers and employees are able to quickly gather the documents necessary, and others take a very long time. Plan ahead. Since the government makes new H-1Bs available every year on October 1, it is a good idea for employers subject to the H-1B quota to file petitions—if possible—on April 1, the first day petitions will be accepted by USCIS.
Q: Are there any times of the year when new H-1B visas are unavailable?
A: There is a quota or “cap” on the number of new H-1Bs that can be granted each government fiscal year (Oct. 1—Sept. 30). The cap is currently 65,000, but a relatively recent change in the law added an additional exemption of 20,000 for graduates of U.S. institutions with a graduate degree. Once the cap is reached (or caps are reached), employers subject to the cap may not obtain initial H-1B authorization for potential employees until the following October 1. Higher education institutions and certain affiliated non-profit and research entities and government research organizations are exempt from the cap. This means that these employers may obtain H-1B authorization for potential employees regardless of exhaustion of the quotas or caps. A qualified and experienced attorney can analyze an employer’s eligibility for exemption, and expert attorneys have been very successful in obtaining exemption for employers. The caps do not apply to extensions of H-1B status or to changes of employer or addition of an employer (known as “concurrent H-1B employment”). Since USCIS accepts H-1B petitions up to six months in advance of the intended start date, cap-subject employers should—if possible—file petitions on April 1 for the H-1Bs that become available the following October 1.
Q: What happens if my OPT expires before my H-1B status can begin?
A: “Cap Gap” regulations provide for an automatic extension of OPT for F-1 students who have pending or approved H-1B petitions, as long as the students meet certain criteria. In other words, eligible F-1 students, whose OPT otherwise would have expired, can continue working until their H-1B petition is decided. To qualify for this “cap gap protection”, the H-1B petition must have been filed during the H-1B acceptance period, which begins on April 1 of the given calendar year for an October 1 start date of that year. Additionally, the F-1 student’s OPT must have remained in effect on April 1. If the OPT expired more than 60 days before April 1 of that year, the student is not eligible for cap gap protection. A student who is in the 60-day “grace period” on April 1 receives partial cap gap protection, in that they are not allowed to continue working for any employer, but they can remain in the US in valid status until H status takes effect on October 1. Students ineligible for cap gap protection may have to depart the United States temporarily before acquiring their H-1B status, continue their studies, or seek change of status to tourist or dependent. For students who are protected by the cap gap regulations, that protection remains valid until USCIS approves the petition and their H-1B status commences, but does not extend past September 30 of that calendar year. If USCIS denies, rejects, or revokes the H-1B petition, the gap-gap relief terminates. It also should be noted that these cap gap protections do not apply to H-1B petitions filed under the cap exemption.
Q: Can one change from another nonimmigrant status to H-1B without leaving the U.S.?
A: Yes. If one meets all of the criteria for H-1B status and is in valid nonimmigrant status an approval of the petition filed on one’s behalf will grant a change of status to H-1B. In this case, a visa in the passport is not necessary to remain in the U.S. and work; however, when one next needs to re-enter the U.S. from abroad a visa will be necessary (visa not necessary for re-entry from Canada or Mexico, unless the home country is considered a “state sponsor of terrorism,” (at this writing the list includes Iran, Syria, Libya, Sudan, North Korea, and Cuba–see http://www.state.gov/documents/organization/65476.pdf.).
Q: Is H-1B status available for part-time jobs?
A: Yes. H-1B status is available for part-time employment, and the employer must indicate in the petition that the employment will be part-time.
Q: May someone in H-1B status work for more than one employer?
A: Yes. It is possible for someone to hold H-1B authorization for employment with more than one employer—known as “concurrent employment”—if each employer has properly filed an H-1B petition. Although this remains an unsettled area of the law, it is generally agreed that the “portability” provisions of the law allow each subsequent employer, (the employer after the first H-1B employer), to begin the employment after filing but before approval of the new H-1B petition. In other words, once the employee has H-1B authorization and status for the first employer, he/she may begin employment with the second (or subsequent) employer once a petition (and receives a USCIS receipt notice). This is known as “porting” to concurrent employment.
Q: What happens if the employment is terminated early?
A: If the employer terminates the employment for any reason before the approved expiration date, the employer is responsible for notifying USCIS to withdraw LCA and providing return transportation of the employee to his or her last place of foreign residence. The employee loses H-1B status upon termination and will be required to leave the U.S. unless the employee finds a new employer willing to file a new petition on his or her behalf in a timely fashion or has another means for obtaining a valid nonimmigrant status or, for instance, has a pending adjustment of status application. This is a complex situation with serious implications, and both the employer and employee will require the advice of an immigration attorney.
Q: May someone with H-1B authorization travel outside of the U.S. and re-enter the U.S.?
A: Yes. An employee with H-1B authorization may re-enter the U.S. after a trip abroad if she/he has a valid H-1B visa in the passport, an unexpired H-1B approval notice, and will return to the U.S. to resume the H-1B employment. If the employee does not have a valid H-1B visa, then one must be obtained while abroad before re-entering the U.S. It is important to understand the difference between H-1B status and an H-1B visa and realize that a change of status to H-1B in the U.S. or an extension of H-1B authorization does not provide a visa, which is a travel document in the passport. A valid visa is not usually required for brief trips to Canada or Mexico unless traveler’s home country is considered “state sponsor of terrorism” (at this writing the list includes Iran, Syria, Libya, Sudan, North Korea, Cuba—see http://www.state.gov/documents/organization/65476.pdf).
Q: May one travel abroad while awaiting approval of an H-1B petition?
A: If an H-1B petition is filed for someone already in the U.S. seeking a change of status to H-1B, and that person leaves the U.S., the change of status request is considered “abandoned,” and it will usually be denied. In most cases, if otherwise approvable, the H-1B petition will be approved and the person will have to obtain H-1B status by obtaining an H-1B visaat a U.S. Consulate/Embassy in the home country and being admitted into the U.S. in H-1B status. For instance, if an F-1 student engaged in OPT travels while the H-1B change of status petition is pending, he/she may be able to enter the U.S. to finish the F-1 program but will likely be denied the change of status but approved for a period of H-1B work authorization and have to leave the U.S., obtain an H-1B visa, and return to the U.S. to start the H-1B employment.
Q: May one travel abroad while awaiting approval of a pending extension petition?
A: Yes. An employee in H-1B status with a pending extension petition may travel outside of the U.S. without causing abandonment of the extension request (such travel causes abandonment of change of status applications and petitions). However, in order to re-enter the U.S., the employee will need a valid, unexpired H-1B approval notice and in most cases a valid and unexpired H-1B visa in the passport. If the employee’s H-1B status has expired while awaiting approval of the petition, or the current H-1B status expires while the employee is abroad, then the employee will not be allowed to return and must remain abroad until the extension is approved and also must obtain a valid visa before returning to the U.S. in most cases.
Q: How may an individual in a valid nonimmigrant status extend the validity of the visa in his or her passport (obtain a new visa)?
A: In order to obtain a nonimmigrant visa, one must usually make a personal appearance before a U.S. consular officer at a U.S. Embassy or Consulate abroad. It is no longer possible to have the visa reissued in the U.S. Travelers must plan carefully to ensure that they have enough time to obtain a visa during the stay abroad. View the web site of the consulate at which you intend to apply for the visa (see http://usembassy.state.gov/) to learn about the application process and find estimated “wait times” at http://travel.state.gov/visa/temp/wait/tempvisitors_wait.php
Q: What happens if an H-1B employee wants to move to a new employer?
A: If an H-1B nonimmigrant wants to move to a new employer, the new employer must file an H-1B petition with USCIS on behalf of the intended employee. The intended employee may begin working for the new employer when the new H-1B petition is filed (and the receipt notice received) and need not wait for approval of the petition. This only applies to employees already granted H-1B status with another employer. A person who wishes to leave a cap-exempt employer to work for a cap-subject employer may be subject to the cap and unable to move if the cap has been exhausted. A qualified immigration attorney can provide analysis and guidance concerning this.
Q: What happens if an H-1B employee changes positions with the same employer?
A: Another petition must be filed to reflect the changed circumstances unless the changes are insignificant. A qualified immigration attorney can provide analysis and guidance concerning this.
Q: What happens if the employer transfers the H-1B employee to another location?
A: If the employer did not list the new location in the initial LCA and petition, the employer will have to file a new LCA and H-1B petition (to “amend” the prior H-1B authorization). There are some exceptions, for example relocations that are not permanent but just a short-term assignment.
Q: Must an employer under take any specific recruitment for U.S. workers prior to filing an H-1B petition or prove that no U.S. workers are available for the job?
A: No, unless the employer has been found by DOL to be a willing violator of the LCA regulations, in which case certain recruitment efforts may be required. There are recruitment requirements for some employment-based permanent residence categories and processes, but not for the H-1B.
Q: What status is available for an H-1B employee’s family members?
A: An H-1B’s spouse and unmarried children under the age of 21 are entitled to H-4 status. They may not accept employment in that status, but may study in the U.S. If the H-1B’s spouse is eligible for a status other than H-4 (including H-1B), the spouse may choose to have that status rather than H-4. For example, the spouse may find employment and have the employer file an H-1B petition for him or her. Make sure to discuss dependents with the person filing the H-1B petition so that their change of status or extension of status application may be included with the H-1B petition. H-4s usually may not obtain a Social Security number, but may apply to U.S. Internal Revenue Service (IRS) for a Taxpayer Identification Number (ITIN) in some circumstances.
Q: Must my employer hire an attorney to prepare the H-1B petition to be filed for me
A: No, not necessarily.Some employers have expert staff, sometimes including attorneys or Human Resources specialists, who can file a proper petition and provide guidance through the process.Some employers have an immigration attorney “on retainer” or regularly associate one for such matters. If an employer does not have substantial experience with H-1B petitions, though, it would be wise to seek counsel of a qualified immigration attorney. Relatively minor missteps can be quite costly for both employer and employee. Don’t be the beneficiary of your employer’s first self-prepared H-1B petition (it’s likely to involve trial and error)!
Q: May I hire an attorney to prepare the H-1B petition to be filed for me?
A: This must be discussed with the employer. Many employers will allow the employee to hire an attorney to file the H-1B petition. Remember, though, that the petition is filed by the employer on behalf of the employee, so it is crucial that you discuss this matter with your employer and come to agreement. In effect, the attorney you hire will be representing both you and the employer. Also, a series of recent judicial precedents indicate that the employer in many circumstances is to pay all legal fees and costs for the H1B, excluding dependants’ fees and costs. Failure to do can result in fines, an order of back pay, and debarment from the H1B and permanent resident petitioning process for up to two years.
Q: How can my employer and I find a qualified immigration attorney?
A: Ask friends and co-workers for recommendations. Visit the American Immigration Lawyers Association web site ( www.aila.org). Make sure the attorney regularly handles H-1B petitions. Ask for a written employment agreement stating the fee and services to be provided. Ask whether the fee includes forms preparation and advising throughout the process. Legal fees for H-1B petitions vary widely among attorneys, so discuss the fee.
Q: What if H-1B status is not available to me but I have a job waiting?
A: An immigration attorney may help you and your employer consider other nonimmigrant statuses that may be available to you. For instance, there is a special H-1B1 status available for citizens of Chile and Singapore and a status very similar to H-1B—known as E-3—available for citizens of Australia. Citizens of Canada and Mexico may be able to obtain TN status. Athletes and entertainers may be eligible for P status. O status may be available for those with extraordinary ability.
Q: My immigration attorney’s advice conflicts with the advice provided by my friends, so what should I do?
A: Immigration attorneys are not infallible, but unless your friends are immigration specialists they will know less about immigration law, regulations, and processing than a qualified attorney who practices in the field. You should feel free to verify any information provided to you by an immigration attorney by consulting with a second immigration attorney. Bear in mind that often a detail which might seem insignificant to your friends, could be recognized as quite important by an immigration attorney. It may be the one fact that distinguishes your situation from your friend’s. Be wary of well-intentioned friends who provide immigration advice. Treat their offer of immigration advice as you would treat the offer from a non-physician friend to provide you with medical treatment. Incorrect immigration advice may be less painful than unqualified medical advice, but it can be quite damaging to your future.