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H-1B Worker in Specialty Occupation

This information is for the University of Houston hiring departments that have hired or are interested in hiring a nonimmigrant. This information does not constitute legal advice.

The H-1B is the most used classification for UH nonimmigrant faculty and staff.  This category permits U.S. employers to hire foreign professionals (including professors, researchers, and certain technical personnel) who have at least a Bachelor’s degree or equivalent, if those individuals will work in a position requiring that degree.

In order for a person to obtain H-1B status, the prospective employer must file a petition with the U.S. Department of Homeland Security/U.S. Citizenship and Immigration Services (USCIS). The Immigration Specialist files all official H-1B requests for UH.
The process does not officially start until the Immigration Specialist receives the completed forms and supporting documentation from both the hiring department and the employee.  Please visit the H-1B Request Procedures section for detailed steps for submitting a request to petition for an H-1B worker.

Regular processing times (non-expedited) vary throughout the year.  In recent years, processing takes 2-3 months during the first half of the year and it then slows down to 4-6 months during the remainder of the year.  The consular processing time depends upon consular-interview appointment availability and security/clearance checks.  Please note that much of the processing time is beyond the control of the Immigration Specialist and the normal regular processing times are subject to change.

Eligibility for H1B

The H-1B worker is required to have at least a U.S. bachelor's degree, or the foreign equivalent, in the field of intended employment.  If the actual requirements for a position include a higher degree, the foreign worker must have such a degree, or the foreign equivalent.
Foreign credentials must be evaluated by an accredited credentials evaluator for U.S. equivalency determination.

Duration of H-1B

H-1B status can be granted in increments of up to three years at a time. An employee can hold H-1B status for a total of 6 years. 
Extensions beyond the 6th year may be possible if an employment-based permanent residency application has been filed and meets certain conditions.
An employee can become eligible for an additional 6-year period of H-1B eligibility if he/she has spent 12 months outside of the U.S.
The period of eligibility is based on time physically spent in the U.S.; therefore, any time spent outside the U.S. during the H-1B period can be re-captured and used for an extension of status.

Job Description and Requirements

The H-1B is restricted to specific employment conditions.  The department must clearly define (1) the employee’s job duties; (2) where the job will be performed; (3) how much the employee will be paid; (4) how long the individual will be employed; and (5) how many hours the employee will work per week.

The department must report proposed changes to these terms to the Immigration Specialist prior to the changes going into effect.  The Immigration Specialist will determine whether it is necessary to amend an approved H-1B petition.

Wage Requirement

Employers sponsoring individuals in H-1B status are required to pay a certain wage level. This wage will vary depending upon occupation, level of responsibility, and the relative wages paid by UH and the wages paid by area employers for the position.  UH must do wage comparisons:

  1. Internal wages: UH must determine what it pays employees who essentially perform similar duties and have similar qualifications.  UH must be able to explain pay differentials among similarly-situated employees through legitimate business-related rationale.  This is known as the Actual Wage.  UH cannot have a practice of paying foreign nationals less that it pays U.S. workers for similar work.
  2. External wages: UH must determine what the prevailing rate of pay is for the position among area employers. This is known as the Prevailing Wage.  UH cannot have a practice of paying employees less than the prevailing wage.

Once these wage levels are determined, UH is required to pay the higher of either the actual wage or the prevailing wage.  UH must pay at least 100% of the prevailing wage. 

Filing Fees

UH is responsible for the H-1B fees.  These fees cannot be passed on to the employee. UH is responsible for the premium processing fee if employment of the worker in H-1B status is required before the H-1B petition can be approved under regular processing.

  • Initial H-1B (including change of employer and concurrent job): $460 filing fee + $500 Fraud Prevention and Detection fee = $960.
  • H-1B Extension and/or Amendment: $460 filing fee.
  • Optional Premium Processing fee (15 calendar day processing): $1,410.

* Fees are subject to change.
** Institutions of Higher Education are exempted from paying the ACWIA fee.
*** Other fees apply for the consular processing of an approved H-1B petition.

Employment Start Date

The employment start date for an initial H-1B filing to change the beneficiary's status will be the requested starting date or the date the petition is approved, whichever is later.  When the petition is to change H-1B employer, amend the approved H-1B, or for concurrent H-1B employment, the employment may begin on the date the H-1B petition is filed. When the petition is for the beneficiary coming from abroad, the employment begins on the requested start date or no later than 30 days from the date the beneficiary arrives in the U.S., whichever is later.

The filing of an H-1B petition will be delayed by at least the seven business days that it takes for Department of Labor certification of the LCA.

Change from One H-1B Employer to Another

The USCIS requires that the petition to work for a new H-1B employer be submitted before the worker ends his/her employment with the current H-1B employer, since the H-1B worker would be in unlawful stay if unemployed during the transition.  Proof of employment at the time of the new H-1B petition filing needs to be submitted.  The H-1B worker is permitted to start working for the new employer no earlier than the date of the petition filing.

H-1B Dependents

The spouse and/or children under 21 years of age of an H-1B worker are entitled to the H-4 classification, which grants them lawful stay in the U.S. for the duration of the worker's H-1B.  H-4 holders cannot obtain employment in the U.S., but they may attend school.  The filing fee for the H-4 application filed with the USCIS is currently $370 for all dependents included and is subject to change.  Additional fees apply when processing the H-4 visa at the consulate.

UH does not prepare the H-4 application packet for the H-1B worker's dependents, but will include it with the H-1B petition packet.  An H-4 application is not included with an H-1B petition requesting consular processing.

H-1B Visa Processing

The H-1B visa, which is the document stamped in the passport through a formal application at a U.S. embassy or consulate abroad, is necessary in order to be able to enter the U.S. and be assigned H-1B status.  The visa application normally requires the scheduling of an appointment ahead of time and presenting consulate-specific forms and supporting documentation, including the H-1B approval notice (Form I-797) issued by the USCIS and a copy of the H-1B petition packet sent to the USCIS.  UH will not prepare consular-based applications, but may provide direction to where visa application information and guidance are online.

Leave Without Pay

As benefits-eligible faculty or exempt staff, H-1B workers must use paid leave for vacation, sick, or medical time off.  Once paid leave has been exhausted, any unpaid leave must be for a personal reason and needs to be reported to the Immigration Specialist for proper documentation.

Volunteering in H-1B Status

H-1B holders may not work for UH without pay.

Change in Terms of Employment

Any proposed change in the terms of employment of those working pursuant to H-1B classification must be reported to the Immigration Specialist before the change goes into effect. Changes in title, duties, hours per week/FTE, wage, or place of employment that are considered substantial may require the filing of an application with the Department of Labor and/or a petition with the USCIS. The Immigration Specialist is responsible for evaluating such changes and determining the proper course of action.

Termination of Employment

Voluntary or involuntary termination of an H-1B worker must be immediately reported to the Immigration Specialist in order to follow required petition withdrawal steps with the Department of Labor and USCIS in a timely manner.  UH may continue to be liable for paying wages to a former H-1B employee if the Immigration Specialist has not been properly notified of the termination of employment.

Permanent Residency for H-1B Workers

The H-1B classification allows "dual intent," which in immigration terms means that the foreign worker can process a permanent residence application while in the U.S. in H-1B status.  Please visit the Immigrant (Permanent Visa) Worker section for details on permanent residency.