H-1B is a nonimmigrant classification used by an alien who will be employed temporarily in a specialty occupation. This classification is employer sponsored. The position being filled may be of a permanent nature. However, the employment of the foreign national in the position must be considered to be temporary. An individual may be employed for up to six years in H-1B visa status, issued in three-year increments.
A specialty occupation is one which requires the theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor's degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.
A hiring agent (typically the department chairperson) should notify the Office of Civil Rights as soon as possible by phone or email of his or her desire to hire a non-immigrant alien. A Civil Rights staff person will discuss whether an H-1B may be an appropriate visa for that position.
The Office of Civil Rights will file a Labor Condition Application (LCA) with the U.S. Department of Labor after the approval of the Provost on the recommendation of the dean and the chairperson. This process usually takes 10-14 days. The chairperson should provide the prevailing wage for the position. The Provost signs and attests to the statements in the LCA.
The following documents are required for the filing of the I-129:
The I -129 is signed by the Provost and then filed with the USCIS. The USCIS typically takes 60-120 days to render a decision on the petition. If Premium Processing Service is used, the USCIS will guarantee 15-calendar-day processing from the date received.
The department is responsible for paying these fees. Each check is to be made payable to the Department of Homeland Security. We recommend that you begin the payment process as soon as possible in order to prevent delays. Contact Civil Rights for sample payment request forms.
How long can an alien be in H-1B status?
Under current law, an alien can be in H-1B status for a maximum period of six years at a time. After that time an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years.
Who can an H-1B alien work for?
H-1B aliens may only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer if all applicable rules (e.g., Department of Labor rules) are followed. H-1B aliens may work for more than one U.S. employer, but must have a Form I-129 petition approved by each employer.
What if the alien's circumstances change?
As long as the alien continues to provide H-1B services for a U.S. employer, most changes will not mean that an alien is out of status. An alien may change H-1B employers without affecting status, but the new H-1B employer must file a new Form I-129 petition for the alien before he or she begins working for the new employer. The merger or sale of an H-1B employer's business will not affect the alien's status in many instances. However, if the change means that the alien is working in a capacity other than the specialty occupation for which they petitioned, it is a status violation.
Must an H-1B alien be working at all times?
As long as the employer/employee relationship exists, an H-1B alien is still in status. An H-1B alien may work in full or part-time employment and remain in status. An H-1B alien may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.
Can an H-1B alien travel outside the U.S.?
Yes. An H-1B visa allows an alien holding that status to reenter the U.S. during the validity period of the visa and approved petition.
Can an H-1B alien intend to immigrate permanently to the U.S.?
Yes. An H-1B alien can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident status without affecting H-1B status. This is known as "dual intent" and has been recognized in the immigration law since passage of the Immigration Act of 1990. During the time that the application for LPR status is pending, an alien may travel on his or her H-1B visa rather than obtaining advance parole or requesting other advance permission from Immigration to return to the U.S.