The H-1B temporary worker visa is designated for individuals coming 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 hiring department must provide documentation to prove that the job requires a person with special qualifications and that the foreign scholar has those qualifications. The BCIS makes the final determination on whether or not the individual is qualified for the H-1B classification. [The Office of Visa and Immigration Services files all H-1B petitions with the Bureau of Citizenship and Immigration Services (BCIS) on behalf of Dartmouth College. Attorneys representing individuals are not authorized to file H-1B petitions on behalf of the College.] The U.S. limits the total number of new H-1B petitions issued each year to private, for-profit companies, but institutions of higher education, and 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 visa may cover a period of up to three years. It 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, so it is important to plan accordingly. A new six-year period may be begun only after the individual has spent at least one year outside of the U.S.
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 U.S., 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-1B1 visa. If they are in the U.S., no visa application is necessary until he or she plans to travel outside the U.S. and re-enter.
Please ensure that the necessary information forms are filled out completely and accurately, and are submitted to the Office of Visa and Immigration Services with the requested supporting documents. This will expedite the processing of the H-1B petition, which can take a total of anywhere from one to two months to complete and file and up to an additional three months or more for the BCIS to process and adjudicate.
On December 8, 2004, the President signed the H-1B Visa Reform Act of 2004 into law.
The H-1B Visa Reform Act of 2004 creates a new Fraud Prevention and Detection fee of $500 which must be paid by employers seeking an initial grant of H-1B status on behalf of an employee seeking a change of status to H-1B, or seeking an initial entry to the U.S. as an H-1B worker. The new $500 fee applies to any new petition filed on or after March 8, 2005. There are no exemptions from the $500 Fraud Prevention and Detection Fee.
Any requests for H-1B petitions made to the Office of Visa and Immigration Services after February 1, 2005, will need to pay the additional $500.00 fee. This must be requested from Accounts Payable as a separate check, made out to U.S. Citizenship and Immigration Services, along with the regular H-1B filing fee check of $320.00. The checks should be forwarded to the International Advisor assigned to the case (Hinman 6202), to be included with the H-1B application.
If you wish to apply for "Premium Processing" of your H-1B petition, please let us know. For an additional $1,000.00 fee, the BCIS will guarantee adjudication of the petition within 15 days of receipt. This fee should be paid by the department, not the international employee.
Please contact the Office of Visa and Immigration Services if you have any questions about this process.
