Frequently Asked Questions about Nonimmigrant Worker (H-1B) Status

Table of Contents

1. Who May Obtain H-1b Status?
2. What is a specialty occupation?
3. What is involved in applying for H-1b status?
4. What are the filing fees for H-1b status?
5. What documentation is required to file a petition for H-1b status?
6. How may an individual determine if a foreign degree is equivalent to a U.S. degree?
7. Is there a certain wage that must be paid to an H-1B employee?
8. How does an employer determine the prevailing wage?
9. May an H-1b employee work part-time?
10. How long does this petition process take?  
11. How may an individual determine if a foreign degree is equivalent to a U.S. degree?
12. May an H-1bindividual work for more than one employer?
13. How long may an individual remain in H-1bstatus?
14. May an individual in the U.S. in nonimmigrant visa status change to F1-H1b without leaving the U.S.?
15. How may an individual in a valid nonimmigrant status obtain or extend the validity of the visa in his or her passport?
16. What happens if an H-1b wants to switch employers?
17. What happens if an H-1b employee changes positions but remains with the same employer?
18. Must an employer under take any specific recruitment for U.S. workers prior to filing an H-1Bpetition?
19. What is the immigration status of an H-1bemployee's family in the U.S.?
20. May a spouse and/or dependent minor children in H-4 status obtain a Social Security Card?

---

Who may obtain H-1B status?

Nonimmigrant Worker (H-1B) is available for individuals who are coming into the United States temporarily to perform services as professionals in specialty occupations. Nonimmigrants who are currently in the United States in a legal visa status may also be eligible to change to H-1b status. An petition for Nonimmigrant Worker (H-1B) status must be filed by a U.S. employer on behalf of the intended employee.

What is a specialty occupation?

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). Examples of specialty occupations include accountant, computer analyst, engineer, scientist, and architect.

What is involved in applying for H-1B status?

An employer must first file a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL). Upon receipt of the certified LCA, the employer must then file with the Bureau of Citizenship and Immigration Services (U.S. C.I.S., formerly the Bureau of Citizenship and Immigration Services) a Petition for Nonimmigrant Worker (Form I-129), with the Form I-129H Supplement, supporting documentation, and a copy of the certified LCA.

Upon approval of the petition, the employer may employ the individual in H-1B status.  

If the prospective employee is outside of the United States, s/he may apply at a U. S. Consulate for a visa to enter the United States in Nonimmigrant Worker (H-1B) status.  In support of that application, the prospective employee should present to the consular official the employee's portion of the Notice of Action (Form I-797) verifying the approval of the petition, and the other supporting documentation submitted with the Form I-129.

What are the filing fees for H-1B status?

The current filing fee is U.S. $130.00.

As a non-profit educational institution, Temple University is exempt from the "education and training fee of U.S. $1,000, which must be paid by the employer for the initial petition and the first extension of stay."

What documentation is required to file a petition for H-1B status?

The following documentation is required:

1. A certified Labor Condition Application;
2.  Documentation that the job qualifies as a specialty occupation;
3.  A copy of the individual's U.S. college 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);
4. A copy of any required license to practice the occupation in the state of intended employment.
5. A copy of any written contract between the employer and the prospective employee or a summary of the terms under which the individual will be employed.

How may an individual determine if a foreign degree is equivalent to a U.S. degree?

An individual may request an evaluation from a qualified credentials evaluation agency.

Is there a certain wage that must be paid to an H-1B employee?

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 2) the "actual wage" (the wage paid by the employer to other employees in the occupation with similar qualifications).

How does an employer determine the prevailing wage?

An employer may request a prevailing wage determination from the State Employment Service Agency (SESA) or may rely upon wage data from an independent survey if the survey meets the Department of Labor requirements.

May an H-1B employee work part-time?

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.

How long does this petition process take?

Current processing time of the U.S. C.I.S. for a petition for H-1B status is between four (4) and six (6) months from the time the petition is received by the U.S. C.I.S..  In some cases, the process may take longer if the U.S. C.I.S. requests additional documentation before approving a petition.

May an H-1B individual work for more than one employer?

An H-1b individual may work for more than one employer if each employer has properly filed an H-1B petition for concurrent employment.  All employees after the first H-1B employer can allow the employee to commence employment after the filing of the new H-1B petition for concurrent employment.

How long may an individual remain in H-1B status?

In most cases, an individual may remain in H-1B status for a maximum of six (6) 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 the permanent resident cases are pending.

What happens if the employment is terminated before the employee's H­1B status expires?

If the employer terminates the employment for any reason before the approved expiration date, the employer is responsible for notifying the U.S. C.I.S. and providing return transportation of the employee to her/his last place of foreign residence. In this event, the employee loses legal status and may 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 on a timely basis.

May an employee in H-1B status travel outside of the U.S.?

Yes, an employee in H-1B status may travel if the H-1B status is valid and s/he 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.

May an employee in H-1B status with a pending extension travel outside of the U.S.?

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 'he U.S.

May an individual in the U.S. in nonimmigrant visa status change to H-1B status without leaving the U.S.?

Yes, if the prospective employee meets all of the criteria for H-1B status and is in valid nonimmigrant status, a petition to change the nonimmigrant status may be filed with the U.S. C.I.S..

How may an individual in a valid nonimmigrant status obtain or extend the validity of the visa in his or her passport?

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. 

In certain instances, an individual may have her/his visa revalidated in the U.S. This is done by application to the U.S. Department of State. This option is available only if the individual's passport already has a recently expired or expiring H, L, 0, P, or E visa previously issued at a U.S. Embassy or Consulate.  Detailed information about visa revalidation is available on the web site of the Department of State.

What happens if an employee in H-1B status wants to switch employers?

If a employee in H-1B status wants to switch employers, the new employer must file a petition for H-1B status with the INS. The individual may commence work for the new employer when the new employer has received a Notice of Action from the U.S. C.I.S. confirming receipt of the petition.  This applies only to employees who have already been granted H-1B status with another employer.

What happens if an H-1B employee changes positions but remains with the same employer?

Unless the change in position is an insignificant change, a new LCA and a petition to amend the previously approved petition will have to be filed before the employee may assume employee in the new or revised position.

What happens if the employer transfers the H-1B employee to another location?

Unless the change in location is for a very temporary period, a new LCA and a petition to amend the previously approved petition will have to be filed before the employee may assume employee in the new location.  

Must an employer under take any specific recruitment for U.S. workers before filing an H-1B petition?

No, unless the employer is an "H-1B dependent employer" (based upon a high percentage of H-I B employees in the workforce) or has been found to be a willful violation of the LCA regulations.

What is the immigration status of an H-1B status holder's family in the U.S.?

A spouse and dependent minor children (unmarried children under the age of 21) of an H-1B employee are entitled to Nonimmigrant Worker Dependent (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.

May a spouse and/or dependent minor children in H-4 status obtain a Social Security Card?

No:  Individuals in H-4 status are not eligible to obtain Social Security Cards. However, they may apply for Individual Taxpayer Identification Numbers (ITINs). This application is filed with the U.S. Internal Revenue Service (IRS).