H-1B TEMPORARY WORKER STATUS

Download H-1b Temporary Worker Status

General Considerations

• The H-1B category is designed for temporary workers who hold advanced degrees and are employed in specialty occupations. In order to qualify for an H-1B visa, an individual must possess a Bachelor’s degree or higher, and receive a job offer from the College. The position must require the use of the advanced degree and must be a professional or a specialized position.          
• H-1B petitions are filed by an employer, not the employee. Moreover, these petitions are “employer-specific;” therefore, if the individual changes employment, a new petition must be submitted to U.S. Citizenship and Immigration Services (USCIS). If an individual will work for more than one employer, separate concurrent H-1B petitions for each employer must be filed with USCIS.
• An individual can remain in H-1B status for a maximum of six (6) years.
• The initial status approval can be for up to three years and (an) extension/s must be requested thereafter.
• Unlike other types of non-immigrant status, H-1B dependents (spouses and children in H-4 status) are not permitted to work.
• Until recently, universities were subject to a “cap” (or quota) limiting the number of H-1B visas which would be available in a given year. Even though universities are now exempt from the cap, for-profit employers continue to be subject to the H-1B cap.

Processing Information

• The H-1B petition involves three stages: 1) a prevailing wage application to the New York State Department of Labor, 2) a Labor Condition Application to the U.S. Department of Labor, and 3) an H-1B petition to the U.S. Citizenship and Immigration Services. Generally, processing by the New York State and U.S. Departments of Labor (DOL) and USCIS can take six months or longer.
• The H-1B process begins with an application to the New York State Department of Labor, where a prevailing wage determination is made with respect to the minimum wage the individual should be offered as compensation for the position. A prevailing wage determination from the NYS DOL generally takes two to three weeks, but can take longer.  For beneficiaries in college unions this step can be eliminated.
• The second step is to submit a Labor Condition Application (LCA) to the U.S. DOL. Certification generally takes one to two days. Once the approved LCA is received, it is attached to the H-1B petition, which is filed with the USCIS.
• The H-1B petition may remain pending with the USCIS for a period of three to four months or longer. The receipt notice from the USCIS will indicate a processing time of thirty to one hundred and twenty days. As these forms are standard, they do not accurately report current processing times. Please note that individuals from certain countries may experience longer processing times because of 9/11/01-related background checks.
• There is a method for expediting petitions with the USCIS called “premium processing.” For an additional fee of $1,000, the USCIS will review the H-1B petition within 15 days of its receipt of a premium processing request.