H-1B Basic Requirements
The H-1B is an employer-sponsored, non-immigrant visa classification that allows individuals to work temporarily in the U.S. It is appropriate for specialty occupations where the minimum job requirement is a Bachelor's degree in a related area. A broad range of professional occupations qualify for H-1B. Listed below are some critical points to consider before pursuing H-1B status:
- Employer-sponsored. The H-1B petition is filed by the employer, rather than the employee.
- Professional level. The position offered must require the skills and services of a professional and the worker must have the professional credentials to fill it.
- Education Level. The minimum educational level acceptable is a bachelor's degree in the field of the proposed employment.
- Employer-Employee. There must be an "employer-employee" relationship. In other words, the relationship is defined by contract or employment offer letter, which specifies the terms of employment, such as job title and duties, dates, salary, and benefits offered.
- Position, salary, location, and employer-specific. Changes in the terms and conditions of the employment after approval require filing a new or amended H-1B petition.
- Wages. The employer must pay a regular salary to the H-1B employee. Wages must be reported to the IRS as earnings and may be subject to federal, state and local payroll tax deductions, and to FICA ("Social Security") deductions.
- Dual Intent of H-1B Status. The H-1B allows for the possibility of applying for an immigrant visa in the future. The intent to remain permanently in the U.S. will not jeopardize the H-1B nonimmigrant status.
- Time Limits. An employee is allowed to hold H 1B status for up to six years. An employer may request up to three years on the initial H-1B petition and extensions may be requested for a maximum period of three years. After working in the U.S. in H-1B status for six years, an H-1B employee can become eligible for another six-year period if s/he remains outside the U.S. for one year or more. Certain individuals with pending Permanent Residency application may be eligible to extend beyond 6 years. Contact your employer or attorney for more information.
- Extensions. The process for extending H-1B status is identical to a new H-1B status, subsequent H-1B status, or amended H-1B status due to a change in employment. It also involves a similar cost to the employer.
- Dependents. Spouses and children under the age of 21 are eligible for H-4 status. H-4 Dependents are not allowed to work except in limited situations. For more information please visit the USCIS website.
- Return Transportation Requirement. The hiring unit must agree to pay return airfare for the H-1B employee if the department terminates the employment before the H-1B approval expires. This is not required in the case of voluntary termination initiated by the employee.
Determining H-1B Eligibility at UC Berkeley
All requests for H-1B status based on a position at the University of California at Berkeley must go through BIO and the decision to proceed is dependent on the interests of the University. The requested H-1B start and end dates are based on the approved University appointment or employment offer, except with written agreement of the appropriate Dean, Personnel Office or Vice Chancellor for Research. Once this approval has been provided, BIO will facilitate the necessary paperwork with the hiring department. Most of the University's efforts are directed to academic, rather than non-academic positions.
When an Employee is Subject to the Two-Year Home Country Physical Presence Requirement
- A nonimmigrant who is, or has been, in J-1 or J-2 nonimmigrant status and is subject to the two-year home country physical presence requirement, must either satisfy this requirement by returning to his/her home country for two years, or by obtaining a waiver of this requirement before being eligible for H-1B status.
- The process of applying for and receiving a waiver can take anywhere from three to twelve months. The nonimmigrant must provide copies of the waiver and of all Forms DS-2019 (formerly Form IAP-66) for USCIS to approve a change to H-1B status.