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H-1B Status Frequently Asked Questions

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

Note: persons who hold, or 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.
How do I apply for H-1B status?
It is the responsibility of the employer to complete all required paperwork and file the petition for the prospective employee. As the employee, you do not actually complete or sign any immigration forms yourself.
Does the job need to be full-time?
No. You may obtain H-1B status for a part-time job, as long as you and the job meet the other criteria. There is no minimum number of hours per week for a job to qualify for H-1B approval. However, USCIS may ask for evidence that you are able to support yourself in the U.S.
Does the employer need to advertise the job?
Generally the employer must only post two copies of the LCA for 10 business days in the workplace. However, smaller employers who hire many H-1B workers may be required to advertise the job.
After I get H-1B status, may I accept any job?
No! The petition for H-1B status is filed by your prospective employer. The work permission (H-1B status) is then granted only for that specific job with that specific employer.

Note: You may have more than one H-1B approval at a time. Thus, with H-1B status, you may work in two or more jobs at once, as long as each employer has obtained approval of an H-1B petition for that job.
When may I begin working?
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 authorization (OPT) after graduation in order to begin working sooner. The application for practical training 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.
If I get H-1B status, how long may I remain in the U.S.?
Your employer will tell the USCIS how long they intend to employ you or how long they are requesting the H-1B status. The USCIS will normally grant H-1B status for this period of time, but no longer than three years at a time and (in general) no longer than six years total.
If my job ends earlier than expected, may I still remain in the U.S.?
No! If your job ends before the end of your H-1B petition approval, your employer must report this to the USCIS and you must leave the U.S. or obtain visa status in the U.S. another way. If your employer terminates your job sooner than the ending date given to the USCIS, the employer must pay the expenses of your return travel to your home country, if you return.
What if my employer wants to give me a promotion?
If there are any substantial changes in your job such as a new job title, changes in required qualifications, significant change in job duties, new location, etc, then your employer must file an H-1B amendment petition.
If I wish to change jobs, what must I do?
If you wish to change jobs, your prospective 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.

Note: According to immigration law which went into effect October 17, 2000, you may begin working as soon as your new employer files the H-1B petition with the USCIS. You do not need to wait for the petition to be approved. This is only true for change of H-1B employer. Remember, for change of STATUS to H-1B, you must wait for the approval notice.
How long does it take to get H-1B status?
It varies; the length of time depends, in part, on the location of the job. Once the employer has become familiar with the relevant laws and obtained the necessary forms, the entire H-1B petition process usually takes three to six months if the applications are completed correctly.
How much does an H-1B petition cost?
The USCIS filing fee is $325 plus a $500 anti-fraud fee for all initial H-1B cases and those under portability. There is an additional $1,500 fee for employers that are not higher education or non-profit research institutions. The $1,500 fee must be paid by the employer. The USCIS filing fee for change/extension of status for dependents is $290 regardless of the number of dependents.
What is Premium Processing?
The USCIS offers an expedited service for certain employment-based petitions including the H-1B. Once a petition is submitted to the service center, the USCIS guarantees a response within 15 calendar days. The USCIS fee for premium processing is $1225.
What about my dependents?
If you have been granted H-1B status, your spouse and children (under 21) will normally be eligible for H-4 status. If you and your dependents are in the U.S. in legal status and if your employer is requesting 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. The I-539 should be signed by your primary dependent and not by you, unless the oldest dependent is a minor child.

If your dependents are outside the U.S., the employer does not need to include any information about them in the petition. After the petition has been approved, they may apply for H-4 visas at a U.S. Consulate. In addition to the items mentioned above for an H-1B application, they should present a marriage certificate (for spouse) or birth certificate (for children).

Note: a person with H-4 status may not be employed in the U.S.
May I still enroll in school after I change to H-1B status?
Yes. If you have H-1B status, the employment should be your primary purpose for being in the U.S. However, you may still register and/or complete a degree while you have H-1B status.

Note: You may not accept an assistantship or other student job while you have H-1B status.
What are the chances that an H-1B petition will be approved? What problems could be encountered?
If the position is a professional level one and the employee has a degree in a related field, the chances are excellent that the petition will be approved, although there are sometimes delays if the USCIS has questions. Potential problems include:
  1. If the employee will not be earning the prevailing wage then the employer may not file the Labor Condition Application and thus may not file an H-1B petition. In this case there is no opportunity for an actual USCIS denial but it also cannot be approved.
  2. If the USCIS believes that the position is not a professional one, the petition may be denied.
  3. If the employer is very small or new, the USCIS may question its need for a full-time employee.
  4. There is an annual limit of new H-1B petitions that may be approved each year. If this limit is reached, no further H-1B petitions will be approved until the following fiscal year. The limit for Fiscal Year 2006 (October 1, 2005 - September 30, 2006) is 65,000, plus an additional 20,000 for foreign graduates of U.S. universities who have obtained a Master's degree or higher. Non-profit and government research institutes and higher education are exempt from the annual limit, or cap.

    Note: Individuals who transfer from an exempt institution to a non-exempt employer will become subject to the cap.
  5. If you are currently out of status, note that 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.
Is there any other kind of immigration status that I can use instead of H-1B?
H-1B is the status normally required for a non-immigrant to accept temporary employment, and it may be the only one available to you after your practical training expires.

Additional statuses that permit work are briefly listed below. Consult an immigration attorney for further details.

F-1: F-1 students are usually eligible for 12 months of practical training after (and sometimes before) graduation.

J-1: J-1 students are sometimes eligible for 18 months of academic training or 36 months in a post-doctoral research position with permission from the sponsor.

A J-1 scholar may be employed as a non-tenure track teacher or researcher at his/her host institution, usually a university or research laboratory. The J-1 scholar visa is to be used for exchange visitors coming from their home countries and returning to their home countries. This is not normally used for students who have recently graduated from a U.S. university. May be subject to Section 212 (e) - Foreign Residence Requirement.

L-1: Used by employees of a multinational company who temporarily transferred to the U.S. This status is not usually available to a person already in the U.S.

E-(1 or 2): Person employed by an international (foreign-owned) company in the U.S. where the treaty allows for E visas.

O-1: Used by persons of extraordinary ability; normally would not apply to a recent university graduate.

P-(1, 2 , or 3): Used by performing artists and athletes.

TN: (NAFTA Treaty) This status can be used by professional employees from Canada and Mexico and is similar to H-1B. However, there is no requirement for the employer to pay or to document the prevailing wage, and the application procedure is much faster than an H-1B. The occupations covered are restricted to those allowed under NAFTA.

Note: Mexican nationals need to apply for the H-1B visa stamp in the passport while Canadian citizens are exempt from the visa requirement.

How should I apply for TN status if I am a Canadian citizen?
Present the following documents to the Trade NAFTA Officer at the United States' USCIS Port of Entry:
  1. Proof of qualifying employment offer
  2. Proof of relevant credentials
  3. Proof of Canadian citizenship
Filing fee of US $50 and US $6 fee for issuance of I-94 Form

Last reviewed: 11/10