FAQ

The H-1B is an employer-sponsored nonimmigrant classification which allows persons who are not citizens or permanent residents of the U.S. to work in a specialty occupation for up to six years with very limited exceptions. "Employer-sponsored" means that the employer must apply for the H-1B on behalf of the prospective H-1B employee through the United States Citizenship and Immigration Services (USCIS). "Specialty occupation" means a position that requires specialized knowledge and skills, and at least a bachelor's degree in that specialty. The H-1B also requires that the H-1B employer pay the H-1B employee the prevailing wage or the actual wage, whichever is higher. The prevailing wage is the salary paid to workers in similar occupations in the geographic area of the intended employment. The actual wage is the wage that the employer pays employees in similar occupations at the location of the intended employment.

Every request for H-1B must come from a NKU department, not the person interested in obtaining H-1B status. To start the process, contact ISSS.

A broad range of professional occupations qualify for H-1B status. Generally, professional-level occupations in engineering, biological, physical, social sciences, mathematics, and business administration will qualify for H-1B. A bachelor's degree is always the minimum requirement for an occupation to qualify for H-1B status, but depending on the position, an advanced degree (Master's or Ph.D.) may be necessary.

H-1B status is available to a person who has been offered a temporary professional position by a U.S. employer. A bachelor's degree or higher in a related area is the minimum educational level required for a position to qualify for H-1B status, and the H-1B employee must have this degree (or higher).

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.

Not necessarily. The job itself must require a bachelor's degree or higher in a specialized field. You must then have that degree to qualify for H-1B status.

It may be particularly difficult to get H-1B status for certain types of jobs. Positions in sales can be difficult if they do not require special training. Some positions in the computer industry, especially computer programming, can be difficult because the minimum requirements for some computer-related jobs are not always well established. An attorney can advise you as to the applicability of an H-1B for a particular job.

Yes, the employer hiring an H-1B worker, must have documentation to prove, and then must certify to the U.S. Department of Labor (DOL) that it will pay the H-1B employee the prevailing wage or the actual wage, whichever is higher. The prevailing wage is the salary paid to workers in similar occupations in the geographic area of the intended employment. The actual wage is the wage that the employer pays employees in similar occupations at the location of the intended employment. The employer must also certify that it is not displacing any U.S. workers to hire the H-1B applicant, and that there are no strikes or other work stoppages in the occupation in which the H-1B applicant will be employed. The employer makes these declarations, under penalty of perjury, by submitting to DOL for certification a form called a "Labor Condition Application" (LCA).

After receiving the certified Labor Condition Application (LCA) from DOL, the employer then submits a petition (application), with supporting documentation to the USCIS. There is a USCIS filing fee for all H-1B petitions as well as additional fees for certain H-1B petitions. Please see the USCIS website on fee information.

The amount of time required to obtain H-1B status varies according to circumstances at the particular employer, DOL and the USCIS. The total processing time at DOL including prevailing wage determination (if necessary)/LCA, and USCIS processing can take as long as six to seven months or longer. Processing times at the USCIS service centers can vary, and you can check their processing times at the USCIS website.

The cap refers to the limit of H-1B visas allowed per federal fiscal year (FY). A fiscal year begins on October 1st and ends on September 30th of the following year. Current regulations set the cap at 65,000 H-1B visas for the entire country. To check the latest cap count please visit the USCIS website.

Universities and related nonprofit entities, nonprofit research organizations and government research organizations are exempt from the cap. These employers are able to submit an H-1B application to the USCIS at any time during the year without concern for the fiscal year limit. However, a person who works for an H-1B cap-exempt employer who changes jobs to an employer that is not exempt may become subject to the H-1B cap.
There is also an exemption from the annual cap for the first 20,000 new H-1B beneficiaries who have earned a Master's degree or higher from a U.S. institution of higher education.

The earliest an H-1B application can be submitted to the USCIS is six months prior to the selected H-1B start date. For employers who are subject to the cap (and because the cap may be reached early every year), it is best to submit the H-1B application in April for the start of the new fiscal year on October 1 when the new batch of 65,000 H-1B visas become available.

In order 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 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, or prior to 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.

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 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 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.

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:

1. 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.
2. 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.
3. There is an annual cap of 85,000 H-1B petitions that may be approved each year for all other industries. If this limit is 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.
4. 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.