The H-1B Visa Overview

The H-1B visa category is designated for individuals coming temporarily to the U.S. to perform services in a specialty occupation which is defined as an occupation which requires theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor's or higher degree for the specific specialization (or its equivalent in experience). The University normally files H-1B visa petitions for faculty and research scholars only, and such individuals would easily qualify under the specialty occupation definition. Non-academic positions at the University may also qualify under the definition. However, it is the policy of the University to process H-1B visa petitions for academic positions only. There are specific procedures to follow in the event a department believes an exception should be made to this rule.
Go here to the H-1B policy statement.

The Department of Labor (DOL) regulates the use of H-1B visa applications; employers bear a certain liability when filing H-1B petitions. Employers must make attestations about the wages for H-1B positions, and they must guarantee the return fare home if an H-1B's employment is terminated before the end of the period of authorized stay. Willful violation of the regulations can result in the University being fined and prevented from filing H-1B and permanent residence petitions for one year.

A Labor Condition Application must be filed by the HIO and approved by the Department of Labor and posted within the Harvard department before an H-1B petition can be filed with the U.S. Citizenship and Immigration Services. The Labor Condition Application requires that departments certify that the salary being paid by the department to the H-1B applicant is the higher of the prevailing and actual wage.

1. The prevailing wage is the average of the rate of wages paid to workers similarly employed in the area of intended employment. Similarly employed means having substantially comparable jobs in the occupational classification in the area of intended employment. The University uses prevailing wage determinations provided by the State Workforce Agency (SWA), since it is the one authoritative source not subject to challenge by the DOL, if the position has been fully and adequately described in the prevailing wage request. The University cannot file H-1B petitions for positions that do not meet the prevailing wage as determined by SESA.
2. The actual wage level is that paid by the employer to all others in the department with similar qualifications and experience as the H-1B worker for the specific employment in question at the place of employment.

It is not possible to file an H-1B petition for scholars supported by personal funds, by fellowships, or outside sponsors. In addition, individuals who already hold H-1B status may not apply for extensions of their status unless the salary meets the prevailing wage.

Once a decision has been made by the HIO, in consultation with the academic department, that an H-1B visa is appropriate, the academic department should follow instructions for the H-1B visa. Advisors in the HIO have worked very hard to provide clear and concise instructions for departments processing H-1B visa applications. If they seem long and complicated, it is because the process is complex. If, after reading the instructions carefully, administrators still have questions, please call an advisor in the HIO for further explanation.

Characteristics of the H-1B visa:

1. The initial H-1B visa may cover a period of up to three years. It may be extended thereafter for up to three more years. The maximum amount of time allowed an H-1B worker is a total of six years. This six-year limit includes prior time spent at another U.S. institution in H-1B status, although it is possible to start the clock again if an individual spends at least one year outside the U.S.
2. Once a scholar is in H-1B visa status at Harvard, the HIO must be informed in writing of any substantial changes in the scholar's employment, such as a new location, different duties, a change in the source of funding or a change of hours (from full-time to part-time or vice versa). Depending on the changes, the HIO may be required to file a new prevailing wage application, a new Labor Condition Application and an amended visa petition.
3. The H-1B visa is an employer-specific visa. Since it is possible to be employed in a part-time position as an H-1B visa holder, a scholar holding appointments at two or more institutions would need an approved H-1B petition from each employer.
4. The dependents of an H-1B visa holder are classified as H-4's and are not eligible for employment under any circumstances.

J-1 visa holders are not eligible for the H-1B visa if they are subject to the two-year home country residence requirement and have not received a waiver of this requirement.