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⇒ Student & Scholar Advising ⇒ Faculty, Staff, & Visitors ⇒ H-1B Employees ⇒ Overview of H-1B Status

Overview of H-1B Status

The H-1B classification is an employment status for individuals who will perform services in a “specialty occupation” or position that requires at least a bachelor’s degree as a minimum entry-level requirement.  The position must require a bachelor’s degree and the individual must have the minimum degree required.

The employer, or petitioner, files an I-129 petition with United States Citizenship and Immigration Service (USCIS).  Before the H-1B petition is filed with USCIS a Labor Condition Application must be filed with the Department of Labor.  An individual cannot self-petition for H-1B status.  The H-1B is employer and position specific which means the employee can only work for the employer with an approved H-1B petition for the specific purpose identified in the I-129 petition filed by the employer.

Unique Characteristics of the H-1B program

Six-year maximum program participation:

An individual can maintain H-1B status for a maximum period of six years.  An employer can only petition USCIS for H-1B status for a maximum of three years at a time, thus an extension petition may be necessary.  After six years in H-1B status the individual must remain outside the US for one year before a new H-1B petition can be filed.  In certain, limited circumstances H-1B status can be granted beyond the six-year period.

Dual Intent:

H-1B status carries the possibility for “dual intent.”  “Dual intent” implies that an individual may choose to pursue permanent residency (or immigrant) status in the US.  Unlike other visa categories, the employee does not have the burden of proving the intent to return to the home country after completion of the program in the US.  Because of dual intent, many scholars see the H-1B as an easier pathway to permanent residence.

Previous J-1 Exchange Visitor Participation:

Individuals who have been in the US in J-1 or J-2 status and are subject to the two-year home residency requirement must either fulfill the two-year requirement or have the requirement waived prior to petitioning for H-1B status.

H-1B Cap:

Congress has placed a limit, or cap, on the number of new H-1B petitions to be processed in a given year.  The current cap is 65,000 plus an additional 20,000 available for workers who have completed an advanced degree in the US.  For this fiscal year (October 1, 2007 through September 30, 2008), the cap was reached early in 2007.  No new cap-subject H-1B petitions will be processed until the new fiscal year begins in October of 2008.

Universities, research organizations, and some non-profit organizations are excluded from the cap.  Individuals seeking H-1B status through Indiana University are not subject to the H-1B cap.

Department of Labor:

Prior to submitting an H-1B petition to USCIS a Labor Condition Application (LCA) must be filed with the Department of Labor.  The LCA certifies that the wage being paid to the employee is the higher of either the actual wage offered to similarly employed individuals or the prevailing wage.  A prevailing wage determination is made by the Department of Labor which is meant to provide a fair and equitable wage in the field of employment and region of the country.

H-1B Filing Fees:

The university hiring department is required to pay a $320 application fee for all petitions filed and a $500 anti-fraud fee for new petitions.  The employer is prohibited from passing the cost of these fees on to the beneficiary.  In addition, an optional, premium processing fee of $1000 can be paid with the filing of an I-907 form if it is necessary that the petition be adjudicated by USCIS within 15 calendar days of receipt.  All checks are made payable to Department of Homeland Security and are submitted by OIS with the H-1B petition and supporting materials.

H-4 Dependents:

The spouse and unmarried children under the age of 21 may hold H-4 status.  H-4 dependants may engage in full or part-time study.  However, H-4 dependents may not be employed in the US while in H-4 status.

Contact OIS at the early stage of pursuing an international employee.  We will assist with information regarding H-1B processing times, Department of Labor wage issues, etc.  OIS can advise regarding other visa category options and dependent-related issues.