The H-1B Visa Overview
The H-1B Visa Defined
The H-1B temporary worker visa is designated for individuals coming temporarily to the United States to perform services in a specialty occupation. A specialty occupation is defined as one that requires “theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor's or higher degree, or its equivalent, as a minimum requirement." The hiring department must provide documentation to prove that the job requires a person with special qualifications and that the scholar meets those qualifications. Further, the department is required to pay a salary to the scholar that meets the prevailing wage. The scholar’s pay check must come from the hiring entity (Harvard University or an affiliated hospital). Please note that H-1B visa status is employment based. Individuals receiving fellowship income are not eligible for H-1B visa status since fellowship is not considered remuneration for services provided to the University.
The H-1B visa is employer specific which means that the USCIS approved petition that was submitted by the HIO authorizes the scholar to work only in the position specified in the petition. A scholar who has an H-1B approval from another employer is not automatically eligible to work at Harvard. An H-1B worker may work for more than one employer, but each employer must file a separate H-1B petition. The employer is liable for the reasonable cost of return transportation of applicant if dismissed from employment by the employer before the end of the H-1B approval.
The HIO coordinates the entire process and files all H-1B petitions with the USCIS on behalf of the University. Attorneys representing individuals are not authorized to file H-1B petitions on behalf of Harvard University.
The H-1B visa petition is a process involving the U.S. Department of Labor (DOL) and the USCIS. Employers are required to obtain prior clearance from the DOL before an H-lB petition may be filed with the USCIS. Specifically, employers are required to file a Labor Condition Application (LCA), Form ETA 9035 with the DOL, making certain attestations concerning the determined prevailing wage, working conditions, and possible labor disputes. This process appies to both initial and extension H-1B petitions.
An individual may hold H-1B visa status for a maximum stay of six years. The initial H-1B petition may cover a period up to three years. The six-year limit includes time in H-1B status with another employer. It may be possible to begin another six-year period in H-1B status after an individual has spent at least one year outside the U.S.
Spouses and unmarried children under 21 are eligible for H-4 visa status. Individuals in H-4 status are not permitted to work. If an H-4 dependent qualifies for specialty occupation, a change of status to H-1B is necessary before employment can begin. H-4 dependents may study in the U.S., full-time or part-time, for the duration of the H-4 (and the primary’s H-1B) status.
Changes in Employment
If any substantial changes in employment occur (such as a new work location, different duties, change in title, change in source or amount of salary, etc.) please notify your HIO advisor immediately. USCIS regulations may require the employer (HIO) to notify the USCIS of such changes; in some cases, a new H-1B petition must be filed.
Income Tax Regulations
Tax regulations for H-1B visa holders are different from regulations for those in F-1 or J-1 status. Please contact your payroll office for clarification on withholding requirements.
Processing Times for H-1B Petitions
The standard processing time for an H-1B petition is four to six months or sometimes even more. The USCIS has a Premium Processing option for an additional fee of $2,500 to provide expedited service. The $2,500 fee is in addition to the standard filing fee of $460 and $500 Fraud Prevention and Detection fee.
With Premium Processing, the USCIS guarantees that it will either issue an approval, request additional evidence, or send notice of intent to deny within 15 business days from the date the petition was received at a USCIS Service Center.