H-1B Temporary Workers

H-1B Temporary Worker Status

H-1B non-immigrant visa status is granted to individuals employed in specialty occupations in the United States. A specialty occupation is defined as an occupation that requires the theoretical and practical application of a body of specialized knowledge and the attainment of a bachelor's degree or higher in a specific field as the minimum qualification for entry into the job.

The H-1B is employer- and- job-specific and requires an employer to file applications with the U.S. Department of Labor (DOL) and U.S. Citizenship & Immigration Services (USCIS) in order to sponsor an employee. This visa allows for an individual to work in the United States for up to six years.

Availability of H-1B Visas
Individuals employed by institutions of higher education or a related or affiliated nonprofit entity, by nonprofit research organizations, or by governmental research organizations are not subject to the H-1B quota.  Georgetown University can file H-1B petitions year-round.

Time Limitations
An individual may be in H-1B status for up to six years, although exceptions to this six year limit may apply in cases where permanent residency applications are in process. An individual becomes eligible for another six years in H-1B status only after residing outside the United States for one full year.

H-1B status will not necessarily lead to permanent residency. Not all positions and employees that qualify for H-1B status meet the criteria for employment-based permanent residency.

Cost to the Employer
There are many fees involved with the H-1B application. For the most part, the employer must pay the fees. The base fee is $460. Additional fees include:

  • $500 Fraud Prevention and Detection Fee
  • $1225 Premium Processing Fee, if premium processing service is requested

Sponsorship Process
The following information is general information about the sponsorship process. For Georgetown University employees, please see the specific instructions on the H-1B Request Form.

Sponsoring an employee for H-1B status is a multi-step process. An employer seeking to hire someone in H-1B status must first obtain a prevailing wage from the Department of Labor and then submit a Labor Condition Application (LCA) to the DOL.

Upon approval of the LCA, an employer must file an I-129 petition with USCIS. The following documents must be included in support of the I-129 petition:

  • Approved Labor Condition Application;
  • Evidence that the alien qualifies to perform services in the specialty occupation including CV, diplomas, and transcripts;
  • Copies of any written contracts between the employer and the beneficiary;
  • Statement signed by an authorized official of the employer that the employer will be liable for reasonable costs of return transportation to the alien's last place of residence if s/he is dismissed by the employer before the end of the period of authorized stay in the United States;
  • Copies of all immigration documents [passport, Form I-94, visa, I-20 form(s), DS-2019 form(s), EAD(s), I-612 waiver approval, and/or I-797 approval notice(s)];
  • I-907 Form (if requesting premium processing service) with the additional fee. Note: Applications filed under premium processing will be processed within 15 days.

Change of Status and Travel While H-1B Petition is Pending
When the employer files the I-129 petition, s/he may request either a change of status or consular processing. A change of status is appropriate for individuals who are currently in the United States. Consular processing is used for those who are overseas or those who will be traveling overseas while the application is pending. Travel outside the United States while a change of status is pending will abandon that change of status. It is, therefore, best to discuss any travel plans with your employer to determine whether a change of status or consular processing is best for you.

When USCIS approves the I-129 petition, the Service Center sends an I-797 approval notice to the employer. If a change of status was requested, a new I-94 card will be attached to the approval and will serve as evidence of employment eligibility. If consular processing was chosen, USCIS sends the original approval notice to the employer and notifies the U.S. Consulate indicated on the I-129 petition. The individual must then travel to the consulate to apply for an H-1B visa.

An individual who requests a change of status will be required to visit a U.S. Consulate and apply for an H-1B visa stamp the next time s/he leaves the United States. The exceptions are for travel to Canada and Mexico. An H-1B employee may travel to Canada or Mexico for 30 days or less without a valid H-1B visa stamp, as long as s/he retains the Form I-94 and presents it for re-entry to the United States within a 30 day period. This is referred to as automatic visa revalidation. Citizens of countries designated as state sponsors of terrorism by DOS (Iran, Sudan and Syria) are not eligible for automatic visa revalidation.

Timing of Applications
Applications may be filed up to six months in advance of the requested start date. Processing times vary. Visit the USCIS Case Status Online website for current processing times.

An employer may file an H-1B petition via Premium Processing or convert a pending application to Premium Processing by submitting Form I-907 with the required fee. This service guarantees adjudication of the application within 15 days.

Maintaining Status
Maintenance of H-1B status is tied to employment with the employer who sponsored the H-1B petition. The H-1B is employer and job-specific. It does, however, allow for portability. Under H-1B portability provisions, an employee who holds H-1B status may begin working for a new employer as soon as the new employer has filed an I-129 petition with USCIS.

Grace Periods

An H-1B employee can enter the United States up to 10 days prior to the approved start date of their H-1B petition.  The CBP official at the airport has the discretion to also give them a 10 day grace period on their Form I-94 at the conclusion of their approved H-1B period. This is not granted in all cases.

Additionally, if an H-1B employee ceases employment with their H-1B employer prior to the expiration date of their I-797 H-1B approval, they may be eligible for a 60 day grace period. This 60 day grace period is only allowed if there are at least 60 days remaining on the Form I-94. The H-1B employee may use this time period to transfer the H-1B status to another employer or depart the United States.

 

H-4 Dependent Spouses Work Authorization

Effective May 26, 2015, certain H-4 dependent spouses can apply for work authorization from U.S. Citizenship & Immigration Services. H-4 spouses are eligible to apply if the H-1B temporary worker:

  • Is the beneficiary of an approved I-140 Immigrant Petition for Alien Worker; or
  • Has been granted an extension of H-1B status beyond 6 years under sections 106(a) and (b) of AC21. 

For more information and details of how to apply, visit the USCIS website. USCIS also has a Frequently Asked Questions website.

 

Maintaining Valid H-1B Temporary Worker Status

In order to maintain valid H-1B status, temporary workers must:

  1. Maintain a valid passport at all times, unless exempt from passport requirements;
  2. Work only for the employer(s) sponsoring the approved H-1B petition except in the case of a transfer (see below);
  3. Report a change of address to DHS within 10 days of the change via the USCIS website or Form AR-11;
  4. Notify their International Scholar (IS) Advisor whenever there is any change in their work (change in title, duties, or department, hours, if they are leaving the job, etc.); and
  5. Apply for an extension before the H-1B approval/Form I-94 expires (in order to continue working at Georgetown). Processing can take 6-8 months, so allow ample time for processing. The application must be filed with the USCIS prior to the expiration date on the Form I-94 for the employee to be able to continue working without interruption. There is no grace period for foreign nationals in H-1B status after the authorized period of stay ends unless specifically authorized by the DHS at the port-of-entry.

Time Limitation
H-1B status may be granted for an initial period of up to three years. Extensions may also be granted thereafter in increments of up to three years in length. The cumulative maximum duration in H-1B classification is six years (with limited exceptions).

Transfer
H-1B temporary workers may transfer their status to a different employer. Before the employee starts work with the new employer, the new employer must first file an I-129 petition with the USCIS and confirm that it has been received. USCIS often requests copies of recent pay stubs for transfer applications as evidence of maintenance of status.

Travel
For information about traveling in H-1B status, please see Travel Outside the United States.