H-1B Information for Students

This information has been prepared for the use of Loyola University New Orleans students and is for general information only. It does NOT constitute legal advice. Legal advice on immigration matters should only be given during direct consultation with an attorney who is familiar with all the specific facts of an individual's cirucmstances.

Frequently Asked Questions by students (and their employers)

What is H-1B Status?
H-1B status is an immigration status which is:

  • granted by the U.S. Department of Homeland Security (DHS)
  • to an individual
  • for temporary work
  • in a professional level job in a "specialty occupation"
  • with a specific employer who has petitioned on behalf of an employee
  • for a specific job

Who is eligible for H-1B status?
To be eligible for H-1B status, you:

  1. Must have an offer of a "professional level" or "specialty" job and
  2. Must have a minimum of a Bachelor's degree or equivalent (or higher if job requires).
  3. If you engaged in Optional Practical Training, you must have been unemployed for less than 90 days. You should be prepared to provide "objective" evidence of employment.

What is a professional level job?
A professional level job is a position that normally requires a minimum of a Bachelor's degree. The degree must be a normal requirement for similar positions.

Does the job need to be full-time?
No. You may obtain H-1B status for a part-time job as long as you and the job meet the other criteria, and as long as the employer agrees to file a petition.  There is no minimum number of hours per week for a job to qualify for H-1B approval.

What salary requirements are there for H-1B employment?
An H-1B employee must be paid at the higher of the "actual wage" or "prevailing wage."  The actual wage is the wage paid to other, similarly employed, employees with the same employer. The H-1B employee must also be eligible for the same benefits as a U.S. employee. The prevailing wage is the average wage paid to similarly employed persons by all employers in the same geographic area.

How do I apply for H-1B status?
It is the responsibility of the employer to complete all required paperwork and file the petition for the prospective employee. As the employee, you will not actually complete or sign any immigration forms yourself. 

There are technically two parts of the H-1B application: 1) the labor condition attestation to the Department of Labor and 2) an application to DHS for the employee to obtain H-1B status. Both of these must be approved before you may work as an H-1B employee. If you are currently in the U.S. in legal non-immigrant status, then the employer may request that your status be changed to H-1B without leaving the U.S. This is done with the same form used for the employer's petition. If you are outside the U.S. or will be leaving before obtaining H-1B status, then you must apply for an H-1B visa outside the U.S. and obtain H-1B status upon entry to the U.S.

Remember: if you change your immigration status within the U.S., you have not obtained a new visa. If you travel outside the U.S. and wish to re-enter with H-1B status, you must still apply for an H-1B visa at a U.S. Consulate overseas. (If you travel to Canada or Mexico, you usually do not require a new visa for re-entry to the U.S. We suggest that you discuss this with an advisor or an attorney.)

Note: If your employer requests a change of status to H-1B for you, and you leave the U.S. before the application is approved, the change of status becomes invalid. Therefore, you should discuss any travel plans with an advisor or an attorney.

Who must pay the I-129 filing fee?
Under current Department of Labor regulations, the I-129 petition filing fee is generally viewed as an employer business expense that must be paid by the employer.  In most cases, the employer should pay the application fees for the H-1B petition, and you may NOT reimburse your employer for this fee. 

How do I apply for an H-1B visa?
Remember: DHS must approve the employer's petition before you apply for an H-1B visa at a U.S. Consulate.
To apply for an H-1B visa, you should submit the following materials to the U.S. Consulate:

  • Copy of DHS approval of H-1B petition (Form 1-797) (Many consulates require the original 1-797.)
  • Copy of employer's H-1B petition
  • Copy of certified Labor Condition Application (LCA)
  • Copy of highest diploma
  • Recent letter from employer stating dates you have been employed (if any) and their intention to employ you upon return to the U.S.

In addition to the above materials, you must submit the materials required for all non-immigrant visas. Some consulates also require additional materials for an H-1B application. There is also a fee for the H-1B visa. Contact the specific consulate for their requirements. (Go to http://usembassy.state.gov for information on visa application procedures at individual consulates.) We also suggest tht you take all previous I-20s  with you when you apply for a visa. (Applicants from certain countries and in certain fields may experience a delay of 1-2 months in getting a visa, if a security clearance is required by the U.S. Department of State.)

Note: If you have ever stayed in the U.S. longer than the time authorized by the INS/DHS, you may be subject to "222(g)" penalties. If this provision of immigration law applies to you, you will have to get your visa in your country of citizenship or permanent residency. For this reason, if you are not applying in your home country, we suggest that you be prepared to prove that you have always maintained legal status. If you think this penalty might apply to you, consult an advisor or an attorney.

How much does an H-1B petition cost?
The normal application fee is $325 plus a $500 antifraud fee and a training fee required for some employers that ranges from $750 to $1500 depending on the number of employees working for your employer.  If the employer wants to request "premium processing" (or a faster processing of the application), they can pay an additional $1225. These fees should be paid by the employer and not the employee. (These amounts do not include any fees required for a visa.)

How long does it take to get H-1B status?
It varies; the length of time depends, in part, on the location of the job, the time of year, and whether premium processing has been requested. Once the employer has become familiar with the relevant laws and obtained the necessary forms, the entire H-1B petition process may take 4-8 months (without premium processing), if the applications are completed correctly, and if the application is filed with regular processing. if premium processing is requested, the process may take 1-2 months.

What are the chances that an H-1B petition will be approved? What problems could I encounter?
If the position is clearly professional level one, if the employee has a degree in a related field, and if the application procedure is followed correctly, the chances are good that the petition could be approved.  However, there is a "cap" on the number of H-1B visas that can be approved in the U.S.  The H-1B Cap prevents many eligible H-1B applicants from getting approved. 

Other potential problems are:

  • If the employee will not be making the prevailing wage, then the employer may not file the Labor Condition Application and thus may not file an H-1B petition.
  • If DHS believes that the position is not a professional level one, the petition may be denied. (See above discussion of professional job.)
  • If the employer is very small or very new, DHS may question its ability to pay the stated wage.
  • If your degree is not from the U.S., and the U.S. equivalence is not apparent, DHS may ask for a degree evaluation.
  • If you are currently out of status, you may not change to H-1B status in the U.S. If the petition is approved, you will be required to obtain a new visa outside the U.S. If you are out of status, we urge you to consult an attorney.

If I get H-1B status, how long may I remain in the U.S?
Your employer will tell DHS how long they intend to employ you, or how long they are requesting the H-1B status. DHS will normally grant H-1B status for this period of time, but no longer than three years at a time and no longer than six years total.

When may I begin working?
In order to be employed in H-1B status, you must normally have both an approved petition for that particular job, and valid H-1B status. You may not begin working until both of these have been approved, unless you have another status which permits employment. For this reason, F-1 students often choose to apply for practical training authorization after graduation so they may begin working sooner. The application for practical training is simpler and usually faster than an H-1B application. If you will be working in a job longer than one year, your employer may then choose to file an H-1B petition.

After I get H-1B status, may I accept any job?
No! The "petition" for H-1B status is filed by your prospective employer. The work permission (H-1B status) is then granted only for that specific job with that specific employer. If you wish to change jobs, your employer must file an entirely new H-1B petition. In most cases, having one H-1B petition approved will not make it any easier to get a second approval.

However, you can begin employment with a new employer as soon as the new employer files a non frivolous I-129 petition for new H-1B employment. You do not have to wait for the new petition to be approved for the new employment to begin. If the new petition is denied, however, "portability" work authorization is automatically terminated.

Is H-1B status required before I can apply for a Green Card? Will it make it easier to get a Green Card?
No! H-1B status is not a "stepping stone" to a Green Card and will probably not make it any easier to get Permanent Resident status. However, IF you qualify for Permanent Resident status through your job, the application process can sometimes take 2-4 years, or even more. H-1B status will give you permission to remain in the U.S and work in that job while you are awaiting approval of your Permanent Resident application.

If I am applying for Permanent Resident status, will it cause problems with my H-1 B application?
No, probably not. In order to qualify for most non-immigrant visas or immigration statuses, such as F-1, J-1, etc., you must prove that you do not intend to be a Permament Resident of the U.S. However, there is an official "recognition of dual intent" for persons applying for H-1 B status of visa. Therefore, you may not be denied H-1B status or an H-1B visa simply because you are working on a Permanent Resident application. For this reason, it is often a good idea to change to H-1B status before begining a Permanent Residence application.

May I still enroll at Loyola after I change to H-1B status?
Yes. If you have H-1B status, the employment should be your 'primary purpose' for being in the U.S. However, you may still register at Loyola and/or complete a degree while you have H-1B status. Note, however, that you may not have an assistantship or other student job while you have H-1B status.

Is there any other kind of immigration status that I can use instead of H1-B?
H-1B is the status which is normally required for a non-immigrant to accept temporary employment, and it may be the only one available to you to use in order to work after your practical training expires.

Very briefly, some other statuses which permit work are listed below. Consult an immigration attorney for further details.

  • F-1: As you probably know, F-1 students are usually able to have 12 months of Optional Practical Training after (and sometimes before) graduation.
  • E-(1 or 2): Person employed by international (foreign) company covered under trade treaty.
  • O-1: Used by persons of extraordinary ability; normally would not apply to a recent university graduate; may be used by an outstanding athlete or performer.
  • TN: (NAFTA Treaty) to be used by professional employees who are citizens of Canada and Mexico. Similar to H-1B, but available only to persons in certain professions. There is no requirment for the employer to document the prevailing wage, and the application procedure is much faster than an H-1B.