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H-1B Frequently Asked Questions
What is an H-1B?
The H-1B is a nonimmigrant visa classification used to hire a foreign national on a temporary basis in a specialty occupation. The H-1B visa status requires a sponsoring U.S. employer such as West Virginia University.
What is a specialty occupation?
An H-1B occupation qualifies as specialty occupation if it requires the theoretical and practical application of a body of specialized knowledge along with at least a Bachelor’s degree or its equivalent. For instance, engineering, mathematics, physical, social & life sciences, business, accounting, and the arts are specialty occupations. This definition seldom presents any difficulties since virtually all positions which WVU considers for an H-1B meet this condition.
Is there an annual limit on the number of H-1B aliens?
Yes, the current law limits to 65,000 the number of aliens who may be issued a visa or otherwise provided H-1B visa status per year. An additional 20,000 H-1B visa slots have been added for individuals graduating with advanced degrees from U.S. schools. However, the annual limit DOES NOT apply to colleges and universities.
Who files the H-1B application at WVU?
All H-1B requests must be processed through International Students and Scholars Services (ISSS). Outside attorneys are not authorized to petition for H-1B status for any University employee.
How long can an alien be in H-1B status?
An alien can hold H-1B status for a maximum period of six years at a time. After reaching the six-year limit, an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens may obtain an extension of H-1B status beyond the 6-year maximum period when:
- 365 days or more have passed since the filing of any application for Labor Certification that is required or used by the alien to obtain EB immigrant status
- 365 days or more have passed since the filing of an EB immigrant petition
- If the alien has an approved I-140 and may not file for Adjustment of Status (Green Card) due to the country of origin immigrant visa backlog.
What if the terms of employment change after the initial filing and approval?
U.S. Citizenship and Immigration Services (USCIS) must be informed of material changes in the employment approved in the initial petition. If there are changes in the terms of employment (including promotions, change of duties), ISSS must be consulted to determine whether an amended or new petition must be filed.
How does one apply?
The H-1B petition process involves two steps. First, WVU must file a Labor Condition Application (LCA) attesting to several items, including payment of the required wage for the position, and the working conditions offered. WVU must then file the certified LCA and Form I-129 petition with USCIS. Based on the USCIS petition approval, the individual may apply for an H-1B visa overseas or request a change of nonimmigrant status within the U.S.
Who pays the fees?
All fees associated with the filing of H-1B petitions are regarded by the Department of Labor as “business expenses”. These fees are the responsibility of each department/college/school. Please note that the premium processing fee is the responsibility of the beneficiary when the reason for expediting the petition is purely for personal reasons (e.g. personal travel, not wishing to wait for prolonged processing times, etc.).
What is the H-1B portability provision and how does it work?
An individual who already holds an H-1B visa status with another U.S. employer is eligible to transfer to WVU under the portability provision (AC21). The individual may begin working for WVU as soon as ISSS has filed the petition with USCIS.
What is concurrent H-1B employment and how does it work?
An individual can work for more than one U.S employer at one time as long as each employer petitions for the individual’s H-1B status.
Does the current law allow for occasional lectures at an institution other than the individual’s place of employment?
Yes. Such activities are allowed provided they are incidental to the alien employee’s H-1B activities at WVU. However, no honorarium, wage, salary or material gain may be derived from these activities. Reimbursement for transportation and reasonable living expenses is permissible.
How long does it take for an H-1B petition to be processed?
For accurate information on H-1B processing times, please consult the USCIS home page.
Can the USCIS process be expedited?
USCIS provides a 15 day premium adjudication process for an extra fee. This fee is in addition to the standard processing fee. The request for premium processing can be placed either at the time of H-1B petition filing or during the pending petition process.
If the University derives any benefit from the payment of the premium processing fee, it is a University expense and must be paid by the hiring unit. However, if the alien employee is the party desiring the premium processing for purely personal reasons, then the cost must be borne by the alien employee. For example, if the employee decides that he/she does not wish to wait the prolonged period for regular processing and opts for premium processing in order to speed up travel plans and preparations.
Can an H-1B individual travel outside the United States?
Yes. The current law allows an individual reenter the U.S. during the validity period of the H-1B visa and approved petition.
Can an H-1B individual immigrate permanently to the United States?
Yes. An H-1B individual is eligible for an immigrant (Permanent Residency) visa and can apply for Adjustment of Status without affecting H-1B status. This is known as dual intent and has been recognized in the immigration law since passage of the Immigration Act of 1990. During the time that the application for Permanent Residence is pending, an individual may travel on his or her H-1B visa without the need to request an advance parole from USCIS to return to the U.S.
Can an individual travel while a change to H-1B status is pending?
You are not permitted to travel abroad while an application for change of status is pending. If you travel outside of the U.S. while an application to change status is pending, you are considered by USCIS to have abandoned your application. In this event an H-1B petition may be approved, but you must apply for an H-1B visa stamp at a U.S. embassy or consulate abroad to enter the U.S. in H-1B status.