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H-1B Employees - General Information


What is H-1B status?

The H-1B non-immigrant status is for foreign nationals who are offered temporary employment in the United States to render services in “specialty occupations.”

  • Employment Offer: An offer of employment is required from an U.S. employer who must file the petition, pay the foreign national regularly, and supervise the foreign national’s work. A foreign national cannot self-petition for an H-1B visa.
  • Temporary: H-1B employment must be temporary, even if the foreign national is coming to the university to fill a permanent position.
  • Specialty Occupation: The foreign national must be coming to the U.S. to work in an occupation that requires (a) theoretical and practical application of a body of specialized knowledge, and (b) a bachelor’s or higher degree in a field related to the occupation.
  • H-1B status is employer and position specific. Employment is limited to work for the sponsoring H-1B employer and work in the position specified in the H-1B petition. If the University of Delaware is filing an H-1B petition for a foreign national, unless and until a different employer files an H-1B petition, that employee may only work for the University and only in the position specified in the H-1B petition. If the employment changes in any material way (such as a significant change in job duties, location, full or part-time, etc.), OISS must be informed.
  • H-1B petitions can be filed for full-time or part-time positions.
  • In order to file an H-1B petition, the University must offer the foreign national a wage equal to or exceeding the required wage for the position.
  • Individuals who are subject to the J non-immigrant visa’s 212(e) 2-year home-country residency requirement are not eligible for H-1B status unless the requirement has been fulfilled or waived.
  • Note regarding current J status holders: Current J status holders who plan to seek a waiver must contact the OISS in regards to their visa status before beginning the waiver process, as it could impact their eligibility for J-status extensions.


What is the role of OISS?

OISS is here to help departments file H-1B petitions and to advise H-1B status holders and their families on how to maintain status in the United States. OISS will send out regular reminders and updates. It is your responsibility to stay current on any changes in immigration regulations via the OISS web site and through updates sent to your UD email account. Immigration regulations can vary depending on your individual case or situation. Always consult an OISS advisor for the most accurate information.

H-1B Petition Process – Foreign National’s Perspective

The H-1B petition process is time consuming. OISS needs time to review the H-1B request, make sure all required documents have been provided, prepare the required forms, and submit the forms to various government agencies. Government processing is also time consuming. For example, it can take 6-8 weeks for the Department of Labor to determine a prevailing wage, and it can take 3-5 months for USCIS to adjudicate an H-1B petition.

We HIGHLY recommend that departments submit H-1B questionnaires, whether for a new hire or an extension, at least five (5) months prior to the desired start date or expiration of the current status to assure there will be no delay in the start date or interruption in employment.

Example: If the department wants a new faculty member to start work in time for classes in August, the department must send a completed questionnaire to OISS in by mid-March.

The Process

  1. The hiring department compiles information about the position and the foreign national and submits a completed H-1B questionnaire with supporting documents to OISS.
  2. If the position is a staff position (not faculty), OISS prepares and submits a Prevailing Wage Request for the position. It can take up to 8 weeks to receive a response from the Department of Labor.
  3. OISS prepares and submits a Labor Condition Application (LCA) for the position. The LCA is usually certified within 7-10 days.
  4. OISS prepares and submits an H-1B petition (Form I-129, and supporting documents) to USCIS.
    a. It can take up to 4 months to receive a response from USCIS.
    b. Premium Processing by USCIS is available to the department or applicant. For a fee of $1225, USCIS provides a response within 15 business days. See more information on Premium Processing in Fee section below.
  5. OISS receives the approval notice which provides the dates of authorized employment.
  6. If the foreign national is overseas, they apply for a visa at a U.S. Consulate and enter the U.S. after the visa is granted.
  7. The foreign national can start working on the USCIS authorized start date.

A diagram of the H-1B process with a timeline can be found here.

H-1B Fees

Most H-1B fees must be paid by the hiring department. Foreign nationals are only responsible for fees in two instances.

Fee Always Paid by the Foreign National

Dependent Extension/Change of Status Fee ($290): If dependents (spouse and children) need their status extended or changed, the foreign national is responsible for the related USCIS processing fee.

Fee Sometimes Paid by the Foreign National
Premium Processing Fee ($1,225): Premium Processing shortens the USCIS processing time to 15 days (from the normal 3-5 months). The department must pay the fee if the department requests premium processing so that the foreign national can start work earlier, or for other work related reasons. However, if premium processing is requested by the foreign national for his/her own personal reasons, he/she is allowed to pay the fee.

How to Pay Fees
To pay a fee, write a check payable to “U.S. Department of Homeland Security” and submit the check to OISS along with all other required documents.

H-1B Fee Summary

Fee type


Separate check?

Who must pay?

I-129 Base Fee


Separate check made out to “U.S. Department of Homeland Security”

Hiring Department

Anti-Fraud Fee
*If new H-1B petition or transfer. Not required for extensions.


Separate check made out to “U.S. Department of Homeland Security”

Hiring Department

Premium Processing Fee
*If premium processing needed.


Separate check made out to “U.S. Department of Homeland Security”

Hiring Department:
(if requested for work related reasons)

Foreign National:
(if requested for personal reasons)

OISS Service Fee


Payment via Inter-departmental Transfer (Form)

Hiring Department

Dependent extension/ change of status
*One fee covers all dependents


Separate check made out to “U.S. Department of Homeland Security”

Foreign National

Processing Times for H-1B Petitions

It takes OISS approximately 5 months to process an H-1B request (including Department of Labor and USCIS processing times). Cases processed under premium processing (extra $1,225 filing fee) are usually processed by USCIS within 15 days of receipt by USCIS, which can shorten the process by six weeks or more.

Unlike many corporate employers, educational institutions are not subject to the annual H-1B quota that begins at the beginning of each federal government fiscal year on October 1st.

Academic Credentials

Academic credentials are included in H-1B petitions as evidence the foreign national has a bachelor’s or higher degree in a field related to the occupation.

If the foreign national provides academic credentials from a foreign educational institution, OISS requires a professional credential evaluation of the highest degree in a field related to the H-1B position. The evaluation is then submitted to USCIS along with the diplomas to verify the foreign degree’s equivalency to U.S. degrees.

Please also provide transcripts as well, if possible. In many cases, a transcript is required to show that the degree was in the same or similar field as the position. This is true for both foreign degrees and U.S. degrees when the diploma does not clearly state the field of study (like University of Delaware PhD diplomas). Even if the field of study is listed on the diploma, USCIS may want to consult the transcript.

Required Wage

The H-1B employer must pay its H-1B workers at least the “required wage.” The “required wage” is the higher of the “prevailing wage” or the employer’s “actual wage” for similarly employed workers (in-house wage). Unless a wage equal to or higher than the required wage is offered, an H-1B petition cannot be processed. Before filing an H-1B petition OISS will work with the hiring department to ensure the required wage is being met.

Travel While H-1B Petition is Being Processed

A foreign national who is not currently in H-1B visa status should not leave the U.S. once the H-1B petition is filed with USCIS. If the foreign national 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. Visa processing times vary by consulate and can be as short as a few days. However, in some cases, this extra step can delay the start of employment by several weeks.

A current H-1B status holder with a valid H-1B visa already in their passport can travel while an extension is being processed as long as he/she has the receipt for the extension petition.

A current H-1B status holder who does NOT have an H-1B visa in their passport may travel, but will have to apply for and receive an H-1B visa before returning to the U.S. As mentioned above, getting an H-1B from a consulate visa can take several weeks.

If you have any questions about traveling while in the process of petitioning for H-1B status or while in H-1B status, contact OISS.

Position Changes

If an H-1Bs employee’s position changes in any way, OISS must be informed immediately. Academic units must contact OISS if the H-1B worker’s position changes in any way. This includes changes in job title, salary, job duties, worksite address, or a change to or from full-time or part-time work. OISS will then request the information it needs to establish whether the required wage has changed and weather a new labor certification application and/or H-1B petition must be filed before the change can take effect.

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. The six-year time limit includes periods of H-1B status accrued while working for previous employers.

There are some exceptions to the six-year limit on H-1B visas. Extensions beyond six years are permissible if:

  1. The H-1B worker’s U.S. stays are intermittent, seasonal, or an aggregate of less than six months a year; or
  2. The H-1B worker spent time outside the U.S. during their six-years in H-1B status. Time spent outside the U.S. can be “recaptured” to extend status beyond the six-year limit; or
  3. The H-1B worker is the beneficiary of an application for alien employment certification application, application for permanent employment certification, and/or Form I-140 Immigrant Petition for Alien, and the application or petition was filed and has been pending for at least 365 days before the extension is requested; or
  4. The H-1B worker is the beneficiary of an approved employment-based immigrant petition and is not able to apply for adjustment of status to lawful permanent residency because of the unavailability of an immigrant visa number.

These exceptions are not available to everyone. Availability depends on an individual’s immigration history and varies case by case. OISS and Payroll should be contacted to determine if the H-1B applicant is eligible for extensions beyond 6 years.

If no exception is available, upon completing six years stay in the U.S. in H-1B status, the H-1B status holder must remain outside the U.S. for at least one year before re-entering the U.S. in the H-1B category.

Extensions of Stay for H-1B Status Holders

An H-1B visa can be extended for up to a maximum of six years, with some exceptions, as discussed above in the “Duration of H-1B Status” section above.

The process to extend H-1B status is, for the most part, the same as the process for initial petitions. The department must submit a new H-1B questionnaire which OISS will use to file a new Prevailing wage determination (if needed) and a new Labor Certification Application (LCA). Again, the department must offer the new required wage to move forward with the petition. Please see more information in the “Required Wage” section above. OISS must file updated versions of forms, letters, and supporting documents with USCIS for the extension, along with the base filing fee and, if needed, the premium processing fee.

There are some differences between initial petitions and extensions though. The $500 "Anti-Fraud Fee" is NOT required for extension applications with the same employer. Also, if (a) the foreign national is already in H-1B status, (b) the extension petition is filed while the H-1B status holder is maintaining their authorized employment, and (c) the extension is filed prior to the current status’s expiration date, then H-1B/H-4 status holders remain in legal status while the extension is being processed by USCIS. Also the H-1B status holder can continue to legally work for the petitioning employer for up to 240 days while the petition is pending.

On-Going Employer Obligation - Maintaining Status

For information about what employees should do to maintain H-1B status, see Maintaining Lawful H-1B Temporary Workers Status.

On-Going Employer Obligation - Offer Transportation Upon Termination

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

Dependents of H-1B Visa Holder

The spouse and/or children (under 21 years old and unmarried) of an H-1B status holder are permitted to apply for H-4 status. Family members are admitted for the same period of time as the H-1B status holder. 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 no longer considered "children" and lose their H-4 status. In order to remain in the U.S., these 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 status 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. Initial H-1B/H-4 visas and subsequent visa renewals must be obtained at a U.S. Consulate abroad.

Change of Employers/Transfer of H-1B

If an H-1B status holder changes employers, the new employer must obtain approval of its own new H-1B petition from USCIS. Under USCIS regulations, a current H-1B status holder may begin to work for a new H-1B employer as soon as the new employer files a non-frivolous H-1B petition for the new employment, and the H-1B status holder may work for 240 days while the application is pending. The new employer and H-1B status holder do not have to wait for the new petition to be approved by the USCIS for the new employment to begin, so long as when the petition is filed the H-1B status holder is (a) actually in lawful H-1B status, and (b) engaged only in the work already authorized. If a foreign national is currently in a non-immigrant status other than H1-B, he/she may not begin work with the new H-1B employer until USCIS approves the H-1B petition.

It is possible to have more than one concurrent H-1B position. However, both positions must be authorized by an approved H-1B petition. For example, if a current UD H-1B employee wants to accept a second job at a different employer while still working for UD, that new employer must file a new H-1B petition for concurrent employment.

Resigning prior to changing employers: The H-1B category is not set up to accommodate the "real-world" practice of changing employment. The validity of an H-1B worker's nonimmigrant status depends upon engaging in the employment described in the employer's H-1B petition. There is no real "grace period" recognized in H-1B status. Because of this, an H-1B worker who resigns his or her position prior to the new employer's filing a new I-129 petition might be seen by USCIS as being in violation of his or her H-1B status, and is therefore ineligible for a transfer or extension of stay. USCIS may want to see evidence such as W-2 forms, paycheck stubs, or wage and earnings statements, showing that the H-1B worker was in fact employed by the prior petitioner and otherwise maintaining status. If the employee is unable to provide evidence that there is no gap in employment, an H-1B change in employer petition cannot be issued.