Frequently Asked Questions About H-1B Status

To be eligible for H-1B status, you must have: 1) a minimum of a Bachelor's degree or equivalent in a specialty field (or higher degree if job requires); and 2) an offer of a professional level specialty job. 

Persons who have held J-1 or J-2 status and are subject to the two-year home country residency requirement are not eligible for H-1B status until the two-year requirement is either fulfilled or waived.

It is the responsibility of the employer to complete all required paperwork and file the petition for the prospective employee. You will be asked to supply copies of your relevant diploma(s), Curriculum Vitae, and passport. 

• If you are in the U.S. with a valid immigration status, your employer will ask for your current immigration documents, and they may petition for a change of status to H-1B.
• If you are out of the U.S., after the H-1B petition is approved, your employer will send you the I-797 Approval Notice, which you will use to apply for the H-1B visa at a U.S. consulate prior to your arrival in the U.S.

The H-1B visa has an annual numerical limit "cap" of 65,000 visas each fiscal year for jobs in the private sector. The first 20,000 petitions filed on behalf of beneficiaries with a master‘s degree or higher are exempt from the cap, for a total of 85,000 H-1B visas annually. Extensions of H-1B, if counted toward the cap in a previous year, are not subject to the cap. 

H-1B workers who are employed at institutions of higher education (colleges and universities) and certain nonprofit or government research organizations are not subject to this numerical cap. 

H-1B is a common status for non-immigrants with a Bachelor's degree or higher to accept temporary employment, but there are other non-immigrant statuses that permit professionals to work in the U.S. See the Visa Options for Employment Eligibility.

No. The petition for H-1B status is filed by your prospective employer. The H-1B work permission is then granted only for that specific job with that specific employer.

To be employed in H-1B status, you must have both an approved petition for that particular job and valid H-1B status. You may not begin working until both of these have been approved, unless you have another status that permits employment. For this reason, F-1 students often choose to apply for practical training (OPT) after graduation in order to begin working sooner. The application for OPT is simpler and usually faster than an H-1B application. In addition, you do not need a job offer in order to apply for OPT. If your employer chooses to file an H-1B petition for you, please note that it must be filed AND APPROVED prior to the expiration of your OPT work authorization in order for you to continue working.

Your employer will tell USCIS how long they intend to employ you or how long they are requesting the H-1B status. USCIS will normally grant H-1B status for this period of time, but no longer than three years at a time with a normal limit of six total years.

If your job ends before the end of your H-1B petition approval, your employer must report this to USCIS and you must leave the U.S. after the job ends, unless another employer applies for an H-1B “transfer” for you, or you apply for and obtain another immigration status in the U.S. If your employer terminates your job sooner than the end date on your I-797 Approval Notice, the employer must pay the expenses of your return travel to your home country.

If there are any substantial changes in your job such as a new job title, changes in required qualifications, significant change in job duties or salary, new location, etc., then your employer must file an H-1B amendment petition.

If you wish to “transfer” to a job with a new employer (also known as portability), that employer must file an entirely new H-1B petition. This must be done prior to the expiration of the first H-1B Approval Notice, or within 60 days of terminating your current employment, whichever comes first. In most cases, having one H-1B petition approved will not make it any easier to get a second approval. According to immigration law, when transferring from one employer to another, you may begin working on the requested start date if your new employer files the H-1B petition with USCIS. You do not need to wait for the petition to be approved.

It varies depending on employer and USCIS processing times. The entire H-1B petition process usually takes two to eight months if the application is completed correctly.

• Application costs: H-1B fees include the Form I-129 filing fee plus certain additional USCIS fees, depending on circumstances. These fees must be paid by the employer.
• Lawyer’s fees: If the employer does not have an internal lawyer or Human Resources professional who handles H-1B petitions, a lawyer will need to be hired by the employer and/or employee. Fees can range from $2,000 to $6,000.
• Premium processing: USCIS offers an expedited "premium processing" service for H-1B petitions, which guarantees a response within 15 business days. Payment of the Form I-907 filing fee is required.

If you have been granted H-1B status, your spouse and children (under age 21) may be eligible for H-4 status. If you and your dependents are in legal status in the U.S. and if your employer requests that your status be changed to H-1B, your dependents may apply for a change to H-4 status.

Your spouse and child should complete and sign Form I-539 (and, if there is more than one dependent, the form I-539A) and submit it with the employer's petition. If your dependents are outside the U.S., the employer does not need to include any information about them in the H-1B petition. After the petition has been approved, they may apply for H-4 visas at a U.S. consulate. In addition to copies of the primary H-1B documents, they should present a marriage certificate (for spouse) or birth certificate (for children) to obtain the visa and enter the U.S. Except in certain circumstances, persons with H-4 status may not be employed in the U.S., but they are allowed to attend school/university.

Yes. If you have H-1B status, employment should be your primary purpose for being in the U.S. However, you may still register for courses and/or complete a degree while you have H-1B status. You may not accept a student job while you have H-1B status.

If the position is clearly a professional, specialty occupation and the employee has a degree in the specialty field, the chances are good that the petition will be approved, although there are sometimes delays if USCIS has questions. Potential problems include:

• If the salary offered to the employee does not meet USCIS wage requirements, the employer may not file the Labor Condition Application and thus may not file an H-1B petition.
• If USCIS believes that the position does not meet the definition of a specialty occupation, or that the employee does not have a degree that matches the specialty, the petition may be denied.
• If the annual H-1B cap has been reached, no further H-1B petitions will be approved until the following fiscal year. In the last few years, this cap has been reached early in the fiscal year. Higher education institutions (colleges and universities) as well as certain nonprofit or government organizations are exempt from the annual cap. Individuals who transfer from a cap-exempt institution to a non-exempt employer will become subject to the cap.
• If you are currently out of status, you may not change to H-1B status in the U.S. and you will be required to return to your home country to apply for a visa after the H-1B petition is approved.