H1B Temporary Worker

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H-1B Temporary Worker

• International Students and Scholars Office
• Iowa State University

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What is H-1B?

• A temporary worker who will perform services in a
  specialty occupation that requires
• Theoretical and practical application of a body
  of specialized knowledge.
• Attainment of at least a Bachelors degree or its
  equivalent in the specialty field.

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H-1B Regulations

• Applicants cannot self-petition for H-1B status.
• H-1B status holders can work only for the
  petitioning employer(s).
• It may take up to 4 months to process H-1B.
  Premium processing is possible.
• Petitions cannot be filed more than 6 months in
  advance of the desired starting date.

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H-1B Regulations

• Petitions cannot be filed until applicant meets
  minimum qualifications.
• H-1B status may be granted for a maximum of 6
  years (initial period of 3 years, and 3
  additional years thereafter).
• Only time spent in H-1B status in the U.S. counts
  toward the 6-year limit (recapture of time spent
  outside the U.S. is possible).

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H-1B Regulations

• The 6-year clock starts over after 365 days
  continuous absence from the U.S.
• H-1B beneficiaries outside the U.S. cannot enter
  the country more than 10 days in advance of the
  petition starting date.
• No grace period after the H-1B end date unless
  indicated on I-94 (10 days).
• Employer must pay at least the prevailing wage
  (determined by the Iowa Workforce Development).

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H-1B Regulations

• Employer must file Labor Condition Application
  (LCA) with the Department of Labor attesting that
  prevailing wage and usual working conditions will
  be offered.
• Fees
• I-129 (320)
• Fraud detection and prevention fee (500)
• I-539 (300) (dependent, if any)
• Premium processing (1,000, optional)
• Training fund fee (for profit organizations)

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H-1B Regulations

• Applicants subject to 212(e) 2-year home
  residence requirement cannot change their status
  to H-1B without a waiver recommendation letter
  from the Department of State.
• H-1Bs are treated as residents and pay all taxes.
• Unlike J-1 exchange visitors, H-1Bs are permitted
  to hold tenure track positions.

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H-1B Regulations

• H-1Bs can take classes full-time or part-time as
  long as they continue to fulfill the terms of
  their H-1B petition.
• An H-1B worker may be employed part-time,
  provided the LCA and H-1B petition state that the
  H-1B worker will work only part-time.
• When H-4 dependent children turn 21, they are no
  longer eligible for H-4 status.

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H-1B Regulations

• H-4 dependents cannot work.
• H-4s can take part-time or full-time classes.
• H-1B cap
• 65,000 per year (6,800 are set aside for H-1B1
  U.S. Chile and U.S. Singapore Free Trade
  Agreement). Unused slots will be added to the
  following year.
• The first 20,000 employees who have earned a U.S.
  Masters degree or higher are not counted toward
  the cap.

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H-1B Regulations

• Exceptions from H-1B cap
• Nonprofit entities (Ex. Higher education
  institutions and research institutions)
• Employees in H-1B who were already counted
  against the cap and are applying for extension,
  amendment to the H-1B petition, or change of
  employer.
• Employees who were counted against the cap during
  the past 6 years and have not left the country
  for a year or more.

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H-1B Regulations

• First day to file for H-1B is April 1 (for those
  who are subject to the cap).
• First day to begin H-1B is October 1 (for those
  who are subject to the cap).
• Form I-129 serves two primary purposes
• The employers H-1B petition
• Request to take action regarding the
  beneficiarys immigration status.

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H-1B Regulations

• Employer is liable for the cost of return
  transportation abroad in the event the employer
  terminates the job prior to the petition end
  date.
• If the I-129 petition is for extension of H-1B
  status, the alien may continue H-1B employment
  for up to 240 days after expiration of the
  current H-1B status, if the employer has filed an
  approvable H-1B extension before the current H-1B
  end date.

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H-1B Regulations

• If an employer has an approved H-1B petition for
  an employee who is abroad, that employee will
  need to apply for an H-1B visa at a U.S.
  consulate.
• Dual intent in the H-1B category
• An alien in the H-1B category is not subject to
  the presumption of immigrant intent under 214(b).

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H-1B Regulations

• H-1B status permits an alien to work for several
  employers at one time, provided each employer has
  an approved H-1B petition for the worker.
• Once an H-1B worker is in the U.S., he/she may
  change employers, provided the new employer files
  a timely H-1B petition for the worker.

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Traveling Abroad During H-1B

• To travel abroad, H-1B workers should carry
• An original H-1B approval notice
• A copy of H-1B petition
• A Job offer letter
• Recent pay stubs
• An unexpired passport
• A valid H-1B visa (except for Canadians)
• Automatic extension of validity at port-of-entry
  (up to 30 days) for temporary travel to Canada,
  Mexico.

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Traveling Abroad During H-1B

• A nonimmigrant who travels abroad while an
  application for change of status to H-1B is
  pending is considered to have abandoned the
  change of status portion of the petition.
• Traveling while an extension of stay application
  is pending is not viewed as abandonment of the
  application.

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Important Note

• Please submit a copy of your H-1B approval notice
  (I-797) to ISSO if you have changed your status
  to H-1B based on the sponsorship of an employer
  other than ISU.

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Questions about H-1B?