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UT Dallas - Human Resources

H1-B Temporary Worker in a Specialty Occupation

The H1-B status is used for the temporary employment of foreign nationals by a specific employer in a specific “specialty occupation. The H-1 category is useful to higher education for several reasons:  The degree requirement associated with the definition of a “specialty occupation” is suitable for many research and teaching positions and tenure track appointments.  Under H1, the concept of “dual intent” is recognized.  “Dual intent” means that the holder of an H-1 visa may legally pursue permanent residency status. 

SPECIALTY OCCUPATION

A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

FLOW OF H-1 PROCESS

PROCESSING TIME

  • Four to Six months should be allowed for processing after all documentation is received from the department and the beneficiary (H1-B).
  • Submission of a prevailing wage request to the Department of Labor.
  • Submission of the H1-B petition (Form I-129), Certified Labor Condition and supporting documentation to United States Citizenship and Immigration (USCIS).
  • Adjudication of H1-B petition by USCIS.
  • If outside of the United States., the Approval Notice must be sent to the prospective employee to apply for a visa.

CHANGE OF EMPLOYER

If the foreign national is in the United States and seeks to change employers, the prospective new employer must file a petition requesting the classification and extension of the foreign national's stay in the United States. The H1-B should not resign his current position until the new employer has received a receipt notice or until the new approval notice is received.

PREMIUM PROCESSING

For a $1,225 premium processing fee, USCIS Center will guarantee that within 15 days of USCIS receipt of the H1-B petition, they will issue either an approval notice, a notice of intent to deny, a request for additional evidence or a notice of investigation for fraud or misrepresentation.  If the USCIS fails to provide one of those outcomes within 15 days, it will refund the $1,225 and continue to process the petition. The premium processing fee is in addition to other required fees.

RESPONSIBILITY OF DEPARTMENT

  • Have the foreign national fill in the personal information on H-1 Request Form and Information FormPDF, complete the department part of the form, signed by the dean and dated.
  • Request check for the $500 anti-fraud fee for a new H1-B or change of employer. Instructions for requesting check are in.H-1_Instructions_for_Requesting_Checks_for_Petitions
  • Request check for H-1B petition of $325, see H-1_Instructions_for_Requesting_Checks_for_Petitions for complete information.
    • IMPORTANT FEE UPDATE:

      New fees for USCIS applications and petitions for benefits are effective on November 23, 2010. Applications or petitions mailed, postmarked, or otherwise filed on or after November 23, 2010 must include the new fee. The new fee for the I-129 H-1B application will be $325.

  • Check(s), H-1 Request Form, copy of job offer letter and acceptance by applicant, and all documentation from beneficiary (H1-B) should be taken to Human Resources (HR) for processing.
  • Pay the the prevailing wage for similar positions as determined by the U. S. Department of Labor.
  • Pay the reasonable costs of return transportation to the H1-B’s last place of residence abroad if the employment of the foreign national is terminated prior to the end of the H1-B validity period. 

PERIOD OF STAY

  • Under current law, a foreign national can be in H1-B status for a maximum period of six years. After the six year limit, the foreign national must remain outside the United States for one year before another H1-B petition can be approved.
  • The initial period of stay under an H-1 is up to three years. 
  • Extensions are available in up to three year increments.
  • Foreign Nationals may obtain an extension of H1-B status beyond the 6-year maximum period when:
    • 365 days or more have passed since the filing of any application for labor certification, or
    • 365 days or more have passed since the filing of an EB immigrant petition.

H1-B IS EMPLOYER SPECIFIC

  • H1-B's may work only for the petitioning United States employer and work must be in the H1-B activities described in the petition.
  • The petitioning United State employer may place the H1-B on the worksite of another employer if all applicable rules (e.g., Department of Labor rules) are followed.
  • Concurrent Employment -- H1-B's may work for more than one United States. employer, but must have a Form I-129 petition approved for each employer.

MAINTAINING STATUS

  • An H1-B is in status as long as the employer/employee relationship exists and the H-1 Approval Notice dates are valid.
  • An H1-B may work in full or part-time employment based on the petition and USCIS approval.
  • An H1-B may also be on vacation, sick/maternity/paternity leave, without affecting his or her status.

STUDY

An H1-B may attend classes if the classes are incidental to the H1-B’s employment and not the primary purpose for remaining in the United States.

H1- B CAP OR NATIONAL ANNUAL QUOTA

Higher Education is exempt from the H1-B Cap.

ITEMS AND DOCUMENTS NEEDED FROM THE BENEFICIARY (H1-B)

Change of status from J-1 to H1-B

  • Check for $325 for H1-B petition.
  • Check for $500 for Anti-fraud fee.
  • Photocopy of foreign national’s passport.
  • Photocopy of foreign national’s current I-94 (both sides).
  • Photocopies of foreign national’s dependent’s passports and I-94’s (both sides).
  • Photocopies of marriage license with translations.
  • Photocopies of all DS-2019 forms and evidence of not being subject to the 2 year home residency requirement.
  • Waiver, if subject to the 2 year home residency requirement.
  • UT Dallas Job Offer Letter.
  • Photocopies of highest diploma earned  (translation(s) if not in English and evaluation of foreign diploma).
  • Curriculum Vitae, including list of publications.

Change of status from F-1 to H1-B

  • Check for $325 for H1-B petition.
  • Check for $500 for Anti-fraud fee.
  • Photocopy of foreign national’s passport.
  • Photocopy of foreign national’s current I-94 (both sides).
  • Photocopies of foreign national’s dependents passports and I-94’s (both sides.)
  • Photocopies of marriage license and translations.
  • Photocopy of I-20 form.
  • Photocopy EAC card if on optional practical training.
  • UT Dallas Job Offer Letter.
  • Photocopies of highest diplomas earned  (translation(s) if not in English and evaluation of foreign diploma).
  • Curriculum Vitae, including list of publications.

Extension of time for H1-B

  • Check for $325 for H1-B petition.
  • Curriculum Vitae, including list of publications.
  • Photocopy of foreign national’s current I-94 (both sides).
  • E-mail from hiring department  to HR requesting extension of stay.
  • If not in HR file:
  • Photocopies of previous H1-B approval notices (Form I-797).
  • Photocopies of foreign national’s dependents passports and I-94’s (both sides.)
  • Photocopies of highest diplomas earned (translation(s) if not in English and evaluation of foreign diploma).

New H1-B for foreign nationals outside the United States

  • Check for $325 for H1-B petition.
  • Check for $500 for Anti-fraud fee.
  • Photocopy of foreign national’s passport.
  • UT DallasJob Offer Letter.
  • Photocopies of highest diplomas earned (translation(s) if not in English and evaluation of foreign diploma).
  • Curriculum Vitae, including list of publications.

Current holder of valid H1-B seeking employment at UT Dallas

  • Check for $325 for H1-B petition.
  • Check for $500 for Anti-fraud fee.
  • Photocopies of previous H1-B approval notices (Form I-797).
  • Photocopy of foreign national’s current I-94 (both sides).
  • Photocopies of foreign national’s dependents passports and I-94’s (both sides).
  • Copy of current position’s job description, copies of W-2 forms and check stubs.
  • UT DallasJob Offer Letter.
  • Photocopies of highest diplomas earned (translation(s) if not in English and evaluation of foreign diploma).
  • Curriculum Vitae, including list of publications.

Current valid H-4 changing status to H1-B

  • Check for $325 for H1-B petition.
  • Photocopy of foreign national’s passport.
  • Photocopy of foreign national’s current I-94 (both sides).
  • Photocopies of foreign national’s dependents passports and I-94’s (both sides).
  • Photocopies of marriage license and translations.
  • Photocopies of all previous immigration documents.
  • UT Dallas Job Offer Letter.
  • Photocopies of highest diplomas earned (translation(s) if not in English and evaluation of foreign diploma).
  • Curriculum Vitae, including list of publications.

Concurrent Employment

  • Check for $325 for H1-B petition.
  • Check for $500 for Anti-fraud fee.
  • Photocopies of previous H1-B approval notices (Form I-797).
  • Photocopy of foreign national’s current I-94 (both sides).
  • Photocopies of foreign national’s dependents passports and I-94’s (both sides).
  • Copy of current position’s job description, copies of last two check stubs.
  • UT Dallas Job Offer Letter.
  • Photocopies of highest diplomas earned (translation(s) if not in English and evaluation of foreign diploma).
  • Curriculum Vitae, including list of publications.

H-4 DEPENDENT

Spouses and unmarried minor children (under age 21) of an H1-B are eligible for H-4 status.

H-4 DEPENDENTS OUTSIDE THE UNITED STATES

H-4 Dependents outside the United States. must apply for H-4 status at the embassy or consulate when application for a visa is made.

Dependents of H1-Bs that are outside the United States should check the website of the embassy for their country for a list of documents necessary to apply for an H-4 visa.

LENGTH OF STAY IN UNITED STATES

The H-4 status is contingent upon the continued validity of the H1-B’s status.  The H-4’s status is not employer specific.  As long as the period of authorized stay has not expired on the H-4’s I-94, the H-4 remains in valid status as long as the H1-B continues to maintain status even if the H1-B changes employers.  If the H-4’s I-94 is expiring, an extension of stay application must be filed by the H-4 before the expiration date.

EXTENDING OR CHANGING TO AN H-4 WHILE IN UNITED STATES

H-4 dependents in the United States extending their status or nonimmigrants in the United States changing their status to H-4 should prepare the following and take it to the Office of Human Resources to be submitted to USCIS:

  • Form I-539 Completed and signed by the H-4.
  • Check for $290 payable to The Department of Homeland Security.
  • Copy of marriage license or family register.
  • Copy of latest I-94, visa, and passport.
  • Children’s birth certificate or family register (if not born in the United States).
  • Copy of children’s latest I-94, visa, and passport (if not born in the United States).

CHILDREN BORN IN THE UNITED STATES

Children born in the United States are citizens.  As such, they are not subject to the visa requirements.

EMPLOYMENT IN THE UNITED STATES

H-4's are NOT eligible to work in the United States.

H-4 CHANGING TO H1-B

Time spent as an H-4 does not count against the time allowed for an H-1.

STUDY

H-4 dependents may study in the United States., full- or part-time.  The duration of their stay is dependent on the H1-B’s period of stay.  H-4’s are not eligible for on-campus employment or practical training.

AGE OUT FOR CHILDREN

H-4 children who turn 21 years of age are no longer considered “children” under I.N.A. and are no longer eligible for H-4 status.  In order to remain in the United States., they must change to another nonimmigrant status, such as F-1 for full-time students.

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DISCLAIMER: U.S. immigration laws are very complex. The information contained in these files is designed specifically as assistance for visitors and scholars at UT Dallas. Immigration laws are constantly changing, and even though we will attempt to keep these files up to date, we cannot guarantee their completeness or accuracy. The information contained herein is not intended to create an attorney/client relationship nor can it be construed as legal advice. For legal advice seek assistance from immigration specialists. You may consider consulting with an attorney who belongs to the American Immigration Lawyers Association (AILA).