The H-1B temporary worker visa classification is designated for individuals coming to the United States to perform services in a specialty occupation. Specialty occupation 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 H-1B is employer-specific. This means that the H-1B beneficiary must be an employee of the H-1B petitioning employer, and may only receive compensation from that employer.
The immigration regulations limit the total number of new H-1B petitions issued each year to private, for-profit companies, but institutions of higher education and certain non-profit organizations are currently exempt from this "cap."
H-1B visa holders are eligible for a total maximum stay of six years; an initial H-1B petition may request a validity period of up to three years. The H-1B sponsorship may be extended thereafter for a total of six years, regardless of the number of jobs held in H-1B status. The six-year limit includes any time spent at another institution or company. A new six-year period may be begun only after the beneficiary has spent at least one year outside of the United States. There are also limited provisions for extension of the six-year maximum period of stay for H-1B beneficiaries in the permanent residence process.
All H-1B sponsorship requests must be processed through the Office of Visa and Immigration Services (OVIS). Outside attorneys may not file H-1B petitions on behalf of current or prospective Dartmouth employees without the authorization of OVIS.
Dartmouth will sponsor current and prospective international employees for H-1B status if they meet certain eligibility criteria. As a general rule, Dartmouth will file H-1B petitions for faculty and senior research, managerial and professional positions. Hiring departments must initiate the H-1B sponsorship process. The department, in coordination with OVIS and the individual, must provide documentation to establish that the offered position is a specialty occupation and that the individual holds the requisite credentials for the position. The department is also required to offer a salary to the individual that meets the Department of Labor's "prevailing wage" for the position. The United States Citizenship & Immigration Services (USCIS) makes the final determination on whether or not the individual is qualified for H-1B classification.
If the individual is in the United States in another nonimmigrant visa status, he/she cannot begin working for Dartmouth until the H-1B petition is approved by USCIS.
An individual who is subject to the J-1 two-year foreign residence requirement may not be eligible for H-1B status under the immigration regulations.
If the individual is in the United States in H-1B status, he/she cannot begin working until the H-1B petition has been filed with USCIS and notification of receipt of the petition issued by that agency. An individual in H-1B status with another employer is not automatically eligible for employment with Dartmouth.
An individual currently in H-1B status with another employer may have limited time left before reaching the six-year maximum period of permissible stay in the United States. OVIS will review the available remaining H-1B time prior to authorizing H-1B sponsorship.
Any material changes to the H-1B employment, including change in FTE status, job duties, job location or salary must be communicated to OVIS before the change becomes effective. An amendment to the current H-1B petition may be required.
The sponsoring department must contact OVIS at least 4-6 months prior to the anticipated employment start date to request H-1B sponsorship. If after initial review H-1B sponsorship is deemed appropriate, the department will be asked to complete the OVIS information request forms. An information request form and checklist of required documents will also be sent to the H-1B beneficiary for completion.
The Department of Labor requires H-1B employers to make attestations about the wages and working conditions being offered to H-1B workers. A Labor Condition Application (LCA) must be filed with the Department of Labor and posted by the sponsoring department in two locations at the actual work location before the H-1B petition can be filed. The department must certify that the salary being offered to the H-1B beneficiary is the higher of the prevailing wage and the actual wage.
The prevailing wage is the average rate of wages paid to similarly employed workers in the area of intended employment. The actual wage is the salary the department pays to other similarly employed individuals within the department. OVIS uses Department of Labor wage data to determine the prevailing wage for a specific position. Dartmouth cannot file an H-1B petition for positions that do not meet the prevailing wage.
Under the Department of Labor regulations, the sponsoring department is also liable for the reasonable costs of return transportation to the alien's home country if he/she is dismissed from employment before the end of the period of authorized stay. These regulations apply to initial and extension H-1B applications.
OVIS will prepare the departmental letter of support and provide the draft versionto the department for review and signature by the department chair or hiring authority. OVIS, with the cooperation of the sponsoring department and H-1B beneficiary, will file the necessary forms and supporting documentation with USCIS.
The department is responsible for the costs associated with any required translations, evaluation of foreign academic credentials, and domestic and international courier fees.
USCIS current processing time for an H-1B petition is 2-3 months. Departments wishing to expedite USCIS processing may submit a request for "premium processing" with the H-1B petition. Petitions that are premium processed are adjudicated in 15 calendar days. The fee for premium processing is $1225.
The USCIS filing fees must be covered by the sponsoring department and are as follows:
The department is responsible for requesting a separate check for each filing fee. The checks should be made payable to "U.S. Department of Homeland Security" and need to be picked up in person at Accounts Payable and sent to OVIS for submission with the H-1B petition filing.
Individuals already on a J-1 Exchange Visitor visa may not be eligible to change to H-1B status. If the person is subject to the two-year home country residency requirement, it bars the person from H-1B visa status until the individual fulfills the requirement or obtains a waiver. Waivers, if possible, can take up to a year to process.
The H-1B visa holder is subject to withholding of Social Security (FICA) tax as well as federal and state income taxes. H-1B visa holders are taxed as "resident aliens" on their worldwide income and may claim deductions for family members. Dependents of an H-1B visa holder in H-4 status may not accept employment under any circumstances.
Once the notice of approval is received, the individual may begin employment as an H-1B1 temporary worker. If the individual is outside the United States, he or she may take the notice, and required supporting documents to the U.S. consulate in the home country to apply for the H-1B visa. If the H-1B beneficiary is in the United States, no visa application is necessary until he or she plans to travel outside the country and reenter.
Last Updated: 9/27/11