Q. Who may obtain H-1B status?
A. H-1B nonimmigrant status is available for individuals who are coming into the United States temporarily to perform services as a professional in a specialty occupation. Nonimmigrants who are currently in the United States in a legal status may be eligible to change to H-1B status. An H-1B petition must be filed by a U.S. employer on behalf of the intended employee.
Q. What is a specialty occupation?
A. A specialty occupation is defined as one that requires a “theoretical and practical application of a body of highly specialized knowledge.” The position must require a bachelor’s or higher degree (or foreign equivalent) in a field related to the position. Examples of specialty occupations include accountant, computer analyst, engineer, scientist, and architect.
Q. What is involved in applying for H-1B status?
A. A Labor Condition Application (LCA) is submitted online with the U.S. Department of Labor (DOL). Upon receipt of the certified LCA, the employer files the Form I-129, Petition for Nonimmigrant Worker, with the H Supplement, Data Collection, supporting documentation, and a copy of the signed and certified LCA with United States Citizenship and Immigration Services (USCIS). Upon approval, the employee may apply for an H-1B visa at a U.S. Consulate, or will be granted a change of status if they are in status in the US.
Q. What are the filing fees for H-1B status?
A. There are a number of filing fees associated with the H-1B. The baseline filing fee is $460. Employers must also pay a $1500 ($750 for employers with 25 employees or less) “U.S. Worker Training Fee”, a $500 “Anti-Fraud Fee” for the initial petition filed on behalf of a particular employee. Finally, if faster adjudication is desired, USCIS provides an option to pay an extra fee of $2500 and obtain “premium processing” of an H-1B petition, which guarantees adjudication within two weeks of filing. NOTE: The employer is required to pay all fees associated with the H-1B petition.
Q. What documentation is required to file a petition for H-1B status?
A. The following documentation is required:
- An approved LCA from the DOL.
- Documentation that the job qualifies as a specialty occupation.
- A copy of the individual’s U.S. degree (bachelor, master or Ph.D.) and/or a foreign degree with evidence that it 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 submitted to meet this requirement.)
- A copy of any required license to practice the occupation in the state of intended employment.
Q. How may an individual determine if a foreign degree is equivalent to a U.S. degree?
A. An individual may request an evaluation from a reputable credentialing agency.
Q. Is there a certain wage that must be paid to an H-1B employee?
A. Yes. The wage paid to an H-1B employee must be the higher of 1) the “prevailing wage” (generally, the average wage for the occupation in the geographic area in which the employee will be employed, or the wage set by a union contract for the position) or 2) the “actual wage” (the wage paid by the employer to other employees in the occupation with similar qualifications).
Q. How does an employer determine the prevailing wage?
A. An employer may request a prevailing wage determination from the National Prevailing Wage Center (NPWC) or by accessing the DOL’s Online Wage Library. Employers may also rely upon wage data from an independent survey if the survey meets the DOL’s requirements.
Q. May an H-1B employee work part-time?
A. Yes. An H-1B employee may work part-time if the employer petitioned for part-time employment and all other H-1B requirements are met.
Q. How long does this petition process take?
A. It may take from 6 to 16 weeks to complete the petition process if all of the required documentation was filed with the petition. USCIS provides an option to pay an extra fee of $2500 and obtain “premium processing” of an H-1B petition, which guarantees adjudication within two weeks of filing.
Q. Are there any times of the year when new H-1B visas are unavailable?
A. Yes. In 2020, USCIS implemented a pre-registration process for employers. Typically in March of every year, employers will have an opportunity to “register” potential H-1B beneficiaries. Once the registration period is complete, USCIS will run a lottery and employers will only be permitted to file H-1B petitions for registrants selected under this lottery. Employers will have 90 days from the date of selection to submit an H-1B petition on behalf of the registrant.
However, foreign nationals previously “counted” under the cap, meaning previously selected in the lottery, may apply to change employers at any time during the year.
Q. May an H-1B individual work for more than one employer?
A. An H-1B individual may work for more than one employer if each employer has properly filed an H-1B petition. All employees after the first H-1B employer can allow the employee to commence employment after the filing of the new H-1B petition, which is known as “H-1B portability”.
Q. How long may an individual remain in H-1B status?
A. In most cases, an individual may remain in H-1B status for a maximum of six years. The initial petition may be approved for up to three years, and subsequent requests for extensions may be approved for up to a maximum of six years. The six years cannot be extended by changing employers. In certain limited situations, the individual can obtain H-1B extensions beyond six years while a permanent resident case is pending.
Q. What happens if the employment is terminated before the employee’s H-1B status expires?
A. If the employer terminates the employment for any reason and before the approved expiration date, the employer is responsible for notifying USCIS and providing return transportation of the employee to his or her last place of foreign residence. In this event, if the employee’s I-94 is still valid, the employee will have a 60 day grace period from the last day of employment to either depart the U.S. or to file for new H-1B or other type of nonimmigrant benefit.
Q. May an employee in H-1B status travel outside of the U.S.?
A. Yes, an employee in H-1B status may travel if the H-1B status is valid and he or she has a valid H-1B visa in the passport. If the employee does not have a valid H-1B visa, then the employee must obtain an H-1B visa abroad.
Q. May an employee in H-1B status with a pending extension travel outside of the U.S.?
A. Yes, an employee in H-1B status with a pending extension may travel outside of the U.S. However, if the current valid H-1B status expires while the employee is abroad, then the individual must remain abroad until the extension is approved and also must obtain a valid visa before returning to the U.S.
Q. May an individual in the U.S. in a nonimmigrant visa status change to H-1B without leaving the U.S.?
A. Yes, if he or she meets all of the criteria for H-1B status and is in valid nonimmigrant status.
Q. How may an individual in a valid nonimmigrant status obtain or extend the validity of the visa in his or her passport?
A. Generally, individuals wishing to apply for nonimmigrant visas must make a personal appearance before a U.S. consular officer at a U.S. Embassy or Consulate outside of the U.S. Most applicants apply in their home country while visiting there after changing status in the United States. In certain instances, an individual may have his or her visa issued in Canada or Mexico, or in another country than his or her home country.
Q. What happens if an H-1B wants to switch employers?
A. If an H-1B nonimmigrant wants to switch employers, the new employer must file a petition for H-1B status with USCIS. The individual may commence work for the new employer when the new H-1B petition is filed. This only applies to employees already granted H-1B status with another employer.
Q. What happens if an H-1B employee changes positions but remains with the same employer?
A. Unless the change in position is an insignificant change, a new LCA and H-1B petition will have to be filed.
Q. What happens if the employer transfers the H-1B employee to another location?
A. In most cases, a new LCA and H-1B petition will have to be filed. There are some exceptions including if the relocation is not a permanent relocation but a short-term transfer.
Q. Must an employer under take any specific recruitment for U.S. workers prior to filing an H-1B petition?
A. No, unless the employer has been found to be a willing violator of the LCA regulations.
Q. What is the immigration status of an H-1B employee’s family in the U.S.?
A. A spouse and dependent minor children (unmarried children under the age of 21) of an H-1B employee are entitled to H-4 status. They may not accept employment in that status, but may study in the U.S. If the spouse is eligible for a different status than H-4 (including H-1B), the spouse may elect to enter the U.S. in that status rather than entering as an H-4. Spouses should note that an offer of employment from a U.S. employer is required in order to obtain most types of work-authorized nonimmigrant status.
Q. May a spouse and/or dependent minor children in H-4 status obtain a Social Security Card?
A. Depends. Some H-4s may be eligible for an “employment authorization document” (EAD) if the H-1B principal is far along in the green card process. With an EAD, the H-4 beneficiary will be eligible to obtain Social Security Cards. For those who are not eligible for a Social Security Card, a Taxpayer Identification Number (ITIN) may be an option. This application is filed with the U.S. Internal Revenue Service (IRS).