H-1B Specialty Occupation Workers


H-1B status is for foreign nationals who come temporarily to the U.S. to work in specialty occupations. Specialty occupations require the theoretical and practical application of highly specialized knowledge as well as attainment of a bachelor’s or higher degree in the specific specialty as a minimum for entry to the position.

Because the H-1B status is employer specific, the H-1B holder may only work for the employer that petitioned USCIS for his or her H-1B status. While occasional speeches or lectures at other institutions or at conferences may occur, compensation for such activities cannot be received.
 
 
The H-1B Cap
The federal government places an annual limit on the number of H-1Bs that are granted. As institutions of higher education and nonprofit entities related to such institutions, Texas A&M University System members are exempt from this general H-1B cap. This means that H-1B petitions for employment at a TAMUS member can be filed at any time of the year regardless of the status of the cap.
 
 
Duration
In general, H-1B status may be held for a maximum of 6 years. Exceptions to this include the following instances:
  • If you have spent time abroad while in H-1B status, that time is recoverable.
  • If 365 or more days have elapsed since a labor certification or I-140 benefiting you was filed, you may be eligible for a one-year extension of your H-1B status.
  • If you are a citizen of India or China having an approved I-140 but who cannot apply for adjustment of status because your priority date is not current due to the “per country” limits on immigrant visa availability, you may be eligible for a three-year extension of your H-1B status.
 
 
Obtaining H-1B Status
H-B status is obtained through the Texas A&M University System member for whom you will be working. Your hiring department will initiate the request to obtain the H-1B with the Immigration Services for Faculty & Scholars office (ISFS) Prior to filing the nonimmigrant petition with USCIS, ISFS must obtain a prevailing wage from the Department of Labor (DOL) and file a Labor Condition Application with DOL. Once filed, USCIS will issue a receipt notice as evidence that the petition has been received and will be processed. ISFS will forward to TAMU employees the receipt number which can be used to
check the status of the case.
 
 
Documentation Required to Process an H-1B
ISFS uses an online system called Tracker to collect the required documentation. When ISFS receives a request and determines that an H-1B is appropriate, we will provide you with a Tracker account. Following that we will send, through Tracker, requests for you to complete a questionnaire and to upload the required documentation.

It is important that you provide up-to-date documents, i.e., valid passports, etc. Be aware that federal regulations regarding passport validity at the time of admission to the U.S. require your passport to be valid for a minimum of six months beyond your authorized period of stay. Your authorized period of stay will be stated on your I-797 Notice of Approval. If you are outside the U.S. and your passport is not valid for this amount of time beyond your authorized stay, the admission officer will only give you lawful presence in the U.S. on your I-94 to match your passport validity period.
 
 
The H-1B Approval Notice
Upon approval of the H-1B petition, USCIS issues Form I-797 Notice of Action. This is sent to the employer who will maintain it until you need it for travel.
  • If you are present in the U.S., the I-797 will contain an I-94 card showing your new status and its expiration date. 
  • If you are located outside the U.S., the notice will be mailed to you so that you can use it in applying for a visa at a U.S. consulate. You are responsible for scheduling your visa interview and verifying with the consulate what documentation you must provide. You may enter the U.S. up to 10 days before your appointment begins.
 
 
J-1 Subject to the Two Year Home Residence Requirement Changing to H-1B Status
If you have ever held J-1 status and been subject to the two-year home residence requirement, you must present evidence of either satisfying the requirement or having the requirement waived. Evidence of having the requirement waived is a Department of State waiver recommendation or a USCIS waiver approval (Form I-612). Those applicants who present a Department of State recommendation must be prepared to show the actual I-612 waiver approval notice when applying for a visa at a U.S. consulate.
 
 
Important Note about Processing Times
An often-asked question is how long it takes to get an H-1B approval. This is a difficult, if not impossible, question to answer since the petitioning process involves federal agencies (DOL and USCIS) with their own fluctuating workloads. Additional time may be needed in order to obtain all the necessary documentation or to resolve prevailing wage issues. Also, in the event that USCIS questions the H-1B petition by issuing a Request for Evidence, extra time will be needed to prepare a response.
 
 
Portability
Individuals who hold valid H-1B status with another employer may begin employment at TAMU (or TAMUS member) as soon as the TAMU (or TAMUS member) petition is filed with USCIS. In this situation you do not have to wait for the new petition to be approved before employment commences. However, if the petition is denied, work authorization is immediately terminated.
 
 
Dependents
H-1B dependents are classified as H-4s and are generally not eligible for employment. If dependents are located in the U.S. a change of status to H-4 category is completed on Form I-539 which may be filed together with your H-1B petition. If located outside the United States, H-4 category is granted at the United States Consulate. Information on the application process can be obtained from the 
U.S. consulate.

NOTE: ISFS cannot advise or provide assistance to you with the completion of an I-539. ISFS will include the I-539 provided by you with the I-129 petition. You are responsible for the filing fee associated with the I-539.