H-1B Temporary Worker Status

General Considerations

The H-1B category is designed for temporary workers who hold advanced degrees and are employed in specialty occupations. In order to qualify for an H-1B visa, an individual must possess a Bachelor's degree or higher, and receive a job offer from the University. The position must require the use of the degree and be a professional or a specialized position.

H-1B petitions are filed by an employer, not the employee. Moreover, these petitions are "employer-specific." Therefore, if the individual changes employment, a new petition must be submitted to the U. S. Citizenship and Immigration Services (USCIS). Additionally, if an individual will work for more than one employer, separate concurrent H-1B petitions for each employer must be filed with the USCIS.

An individual can remain in H-1B status for a maximum of six (6) years. The initial H-1B can be for up to three years; an extension or extensions must be requested thereafter.

Unlike other types of non-immigrant status, H-1B dependents (spouses and children in H-4 status) are not permitted to work.

There is a limit ("cap" or quota) on the number of H-1B visas available in a given year. Although universities are no longer subject to the "cap," for-profit employers continue to be subject to the H-1B cap.

Processing Information

The H-1B petition involves three stages:

  1. A prevailing wage determination by the U. S. Department of Labor,
  2. A Labor Condition Application certification by the U. S. Department of Labor,
  3. An H-1B petition approval by the U. S. Citizenship and Immigration Services, which is part of the U. S. Department of Homeland Security.

Generally, the processing by the U. S. Department of Labor (DOL) and USCIS takes three to five months.

The H-1B process begins with an application to the U. S. Department of Labor, where a prevailing wage determination is made with respect to the minimum wage the individual should be offered as compensation for the position. A prevailing wage determination from the DOL generally takes two months, but can take longer.

The second step is to submit a Labor Condition Application (LCA) to DOL. Certification generally takes one week. Once the approved LCA is received, it is attached to the H-1B petition, which is filed with USCIS.

USCIS may take two to four months to process the H-1B. The receipt notice from USCIS will indicate a processing time of 30-120 days. As these forms are standard, they do not accurately report current processing times. Please note that individuals from certain countries may experience longer processing times because of 9/11/01 related background checks.

There is a method for expediting petitions with the USCIS called "premium processing." For an additional fee of $1,225 (effective on November 23, 2010), USCIS will review the H-1B petition within 15 days of its receipt of premium processing request.

USCIS Filing Fees

The following filing fees must accompany H-1B petitions. All filing fee checks should be drawn on a bank or other institution located in the U. S. and made out to the "Department of Homeland Security."

  • $325 USCIS filing fee (effective November 23, 2010) AND
  • $500 Fraud Prevention and Detection fee* AND
  • $1,225 for premium processing, if desired
  • $290 for dependents who are already in the U.S.($290 regardless of the number of dependents, effective November 23, 2010)

*Note: the $500 Fraud Prevention and Detection fee must be paid by the employer, and therefore, must be drawn on an employer check. The U. S. Department of Homeland Security will not accept personal checks for this fee.