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H-1B Information

Students

The H-1B visa category is for foreign nationals who are offered temporary employment in the United States to render services in “specialty occupations.” An offer of employment is required from an U.S. employer who must file the petition. A foreign national cannot self-petition for an H-1B visa. H-1B employment must be temporary, even if the foreign national may be coming here to fill a permanent position. There must be an employer-employee relationship (i.e., the employer must pay a regular salary or grant payments to the alien). The foreign national must be qualified to fill the H-1B visa position. He/she should have at least an U.S. bachelor's degree (or equivalent) and the appropriate education level in the field related to the nature of job.

H-1B visas are employer specific. Employment is limited to the sponsoring H-1B employer and for employment specified in the H-1B petition. H-1B visas can be for full-time or part-time employment.

J visa holders who are subject to 212 (e) 2-year foreign residency requirements are not eligible for H-1B visa. Unless the individual is able to obtain a waiver of the 2-year requirement, the only non-immigrant visa option for individuals in this category is an O visa.

The H-1B visa holder and dependents must be keep valid passports at all times throughout their stay in the U.S.

H-1B Visa Application Process

The hiring department must submit a completed H-1B Questionnaire to the Office for International Students and Scholars with three (3) copies of all requested documents. (listed on the Questionnaire)

Keep in mind that the process is time consuming. It can take 60 to 120 days for USCIS to adjudicate the petition and the prevailing wage will take an additional 6-8 weeks. We HIGHLY recommend that you submit your H-1B questionnaire, whether a new hire or an extension, at least six months prior to the start date or expiration of the current status.

  1. The department must notify OISS of their intent to hire and sponsor an international for the H-1B visa. Upon notifying OISS, the department will submit the H1B questionnaire and all required documents listed on the questionnaire in a timely manner.
  2. The OISS will process the Prevailing Wage Request. It can take up to 8 weeks to receive a response from the Department of Labor.
  3. The OISS processes the Labor Condition Application (LCA) and provides the department with the required 10 day posting in the form of a "Notice of Filing". The LCA is usually approved within 7-10 days.
  4. The OISS submits an H-1B petition (Form I-129, the DOL-certified LCA, and supporting documents) to USCIS. Approval may take up to 120 days. (Premium Processing is available to the department or applicant. This process allows a response in 15 business days for a fee of $1225 payable USCIS)
  5. Employment is permitted once we receive the approval notice and the I-9 is completed.
 

The current USCIS filing fee for initial or extension of H-1B visa is $325. The fee for premium processing is $1,225. All checks should be made payable to “U.S. Department of Homeland Security”. As of March 8, 2005, all employers will be required to pay a mandatory “Anti Fraud Fee” of $500 in addition to the above stated fees for the initial application. The $500 fee must be paid by University of Delaware (not the H-1B applicant) and must be payable to the “Department of Homeland Security.” (not needed for extensions)

Update: As of November 1st 2012, the Hiring department will cover all costs associate with processing and filing the H1B application. This includes the application fee ($325), the Anti-fraud fee ($500) and the service fee ($250). If the H-1B employee pays these costs, such payments are viewed under the department of labor regulations as an "unauthorized deduction" from the employee's salary.

 

H-1B fee Specifics Table

Fee type

Amount

Separate check?

Who must pay?

I-129 Base Fee

$325

Separate check

Employer

Anti-Fraud Fee

$500

Separate check

Employer

Premium Processing Fee

$1,225

Separate check

Employer or (employee if requested for personal reasons)

Service Fee

$250

Separate check, Cash or Form

Employer

H-1B Reform Act of 2004

Beginning March 8, 2005, the H-1B Reform Act of 2004 will include a mandatory $500 Anti-Fraud fee for each initial H-1B application. This fee WILL NOT affect applications for extension of H-1B visa holders with the same employer.

The $500 fee is in addition to the regular processing fee of $325 and the optional $1225 fee for Premium Processing. The employee cannot pay the anti-fraud fee either directly or through salary deduction. U.S. Citizenship and Immigration Services consider this fee to be an employer business expense that cannot be passed on to the alien beneficiary (employee). A faculty sponsor or department, laboratory, or center can only sponsor an employee for an H-1B visa if the $500 fee can be paid (using unrestricted funds, discretionary funds, or other sources meeting the guidelines). A University of Delaware check for $500, payable to the Department of Homeland Security, should be submitted with the other required application documents. The sponsoring department must pay the fee for any tenured or tenure-track faculty member at the time that an H-1B petition is filed.

Processing Times for H-1B Visas

The current USCIS processing time for both initial H-1B visa and H-1B visa extensions is approximately 5 months. Cases processed under premium processing (extra $1,225 filing fee) are usually processed by USCIS within 15 days from receipt by USCIS. In addition to the USCIS processing, the applicant should account for OISS (one week) and DOL (2 weeks) processing. Educational institutions are not subject to the annual H-1B visa quota that begins at the beginning of each federal government fiscal year on 1st October. An H-1B applicant for extension or transfer may continue to work and be paid for 240 days while the application is pending.

Degree Equivalency

Generally, specialty occupations are those that require at least a bachelor's degree or equivalent academic credits and/or work experience. USCIS will accept three years of professional experience as equivalent to one year of university education (i.e., two years of university education + 6 years of professional experience = a four-year university degree). USCIS will accept an earned bachelor's degree + five years of professional experience to be equivalent to a master's degree. There is no equivalent accepted for a doctorate or professional degree; it must be an earned degree. An evaluation from a professional credentials evaluation agency may be required to verify foreign degree equivalency to U.S degrees.

Prevailing Wage

A foreign national must be paid the prevailing wage for H-1B employment. Prevailing wage is what is normally paid for similar work in the geographic area of employment. Unless the prevailing wage is offered, an H-1B visa cannot be processed. Please contact the Office for International Students and Scholars (OISS) for information on the acceptable prevailing wage for the position offered. Academic units are required to provide OISS with documentation when the H-1B worker's salary is substantially changed.

Change of Employers

If the H-1B visa holder changes employers, the new employer must obtain approval of its own new H-1B petition from the USCIS. It is possible to have more than one concurrent H-1B visa. Under current USCIS regulations a current H-1B visa holder may begin to work with a new H-1B employer as soon as the new employer files a non-frivolous H-1B Visa petition for the new employment and work for 240 days while the application is pending. The new employer and beneficiary do not have to wait for the new petition to be approved by the USCIS for the new employment to begin. However, the H-1B visa holder must be in lawful status; engaged only in authorized work; and must be on a current H-1B status. If a foreign national is currently in a visa status other than H1-B, he/she cannot begin work with an H-1B employer until USCIS approves the H-1B visa.

Duration of H-1B Visa

H-1B regulations allow a foreign national to hold H-1B status for up to six years. An employer may request up to three years on the initial H-1B petition, and extensions may be requested for a maximum period of three years for a total of six years.

There are some exceptions to the six-year limit on H-1B visas:

  1. When the alien's U.S. stays are intermittent, seasonal, or an aggregate of less than six months a year;
  2. Extension beyond six-years is permissible for H-1B visa holders for whom an alien labor certification application and/or Form I-140 Immigration Petition for Alien was filed and has been pending for at least 365 days before the extension is requested;
  3. The alien is the beneficiary of an approved EB immigration petition and is not able to file to adjust status to U.S. permanent legal residence based on the unavailability of an immigrant visa number
  4. The six years time limit includes periods of H-1B stay for previous employers and all time in the U.S. Upon completing six years stay in the U.S. in H status and if the H-1B visa holder and dependents are not eligible for any exception, he/she must reside in his home country for a period of one year before re-entering the US in the H-1B category.

Extensions of Stay for H-1B Visa Holders

An H-1B visa can be extended for up to a maximum of six years as discussed above. The extension process is basically re-applying for H-1B visa. Essentially updated versions of forms, letters and supporting documents that are submitted to USCIS for the initial H-1B visa have to be re-submitted to USCIS for the extension. The $500 "Anti Fraud Fee" is NOT required for extension applications. H-1B/H-4 visa holders remain in legal status while the extension is being processed by USCIS and the H-1B visa holder can continue to legally work for 240 days with the same employer while the H-1B visa extension is being processed by USCIS only if the extension is filed prior to the current expiration date.

A new $250 International Service fee will be charged for each extension.

On-Going Employer Obligation

If the employer terminates the H-1B worker prior to the end of the H-1B petition validity period, the employer is obligated to pay reasonable cost of transportation to the H-1B worker's last place of residence abroad. This requirement does not apply to dependents of the H-1B worker. If the H-1B visa holder terminates the employment, the employer does not have to pay for the return transportation.

Travel While H-1B Visa is Being Processed

A foreign national who is not currently in H-1B visa status cannot leave the U.S. once the H-1B petition is filed with USCIS. If the person leaves while the initial H-1B is being processed, he/she will have to apply for the H-1B visa at a U.S. Consulate abroad rather than having his/her stay changed in the U.S. A current H-1B visa holder can travel while an extension is being processed provided the H-1B visa in the passport is still valid and he/she has the receipt for the extension.

Dependents of H-1B Visa Holder

Spouse and/or children (under 21 yrs old and unmarried) of an H-1B visa holder are admitted to the U.S. on H-4 visas. Family members are admitted for the same period of time for which the H-1B visa holder has been admitted. H-4 family members may study while remaining in the H-4 category but MAY NOT engage in any form of employment. When children under H-4 status turn 21, they are not considered "children" and are not eligible for the H-4 status. In order to remain in the U.S., dependents must change to another non-immigrant status such as F-1 for full-time students.

H-1B/H-4 Visa in the Passport

An H-1B visa holder must have a valid H-1B visa in the passport to re-enter the U.S. after travel abroad, except from short trips (less than 30 days) to Canada and Mexico. The initial and renewals of H-1B/H-4 visa must be obtained at an U.S. Consulate abroad.