Travel and Re-entry
Information for University Departments
Overview of H-1B Status
The H-1B classification is an immigration status for individuals who will perform services in a “specialty occupation,” defined by law as an occupation (position) that requires at minimum the equivalent of a bachelor’s degree or higher for entry. When seeking to sponsor an individual for H-1B status, the individual must have the minimum degree required.
To sponsor an individual for H-1B status, the employer, or petitioner, files an H-1B petition (Form I-129) with United States Citizenship and Immigration Service (USCIS). Before the H-1B petition is filed with USCIS a Labor Condition Application must be filed with the Department of Labor. An individual cannot self-petition for H-1B status. H-1B status is employer and position specific which means the employee can only work for the employer (department) in the position title with the position duties in the location in the H-1B petition filed by the employer.
Unique Characteristics of the H-1B Program
Six-year maximum program participation:
An individual can maintain H-1B status for a maximum period of six years. An employer can only petition USCIS for H-1B status for a maximum of three years at a time, thus an extension petition may be necessary. After six years in H-1B status the individual must remain outside the US for one year before a new H-1B petition can be filed. In certain, limited circumstances H-1B status can be granted beyond the six-year period.
H-1B status carries the possibility for “dual intent.” The term “dual intent” implies that an individual may choose to pursue permanent residency (or immigrant) status in the US. Unlike other visa categories, the employee does not have the burden of proving the intent to return to the home country after completion of the program in the US. Because of dual intent, many scholars see the H-1B as an easier pathway to permanent residence.
Previous J-1 Exchange Visitor Participation:
Individuals who have been in the US in J-1 or J-2 status and are subject to the two-year home residency requirement must either fulfill the two-year requirement or have the requirement waived prior to petitioning for H-1B status.
Congress has placed a limit, or cap, on the number of new H-1B petitions to be approved for employment in a given fiscal year (start dates October 1 through September 30). The current cap is 65,000 plus an additional 20,000 available for employees who have completed an advanced degree in the US.
Universities, research organizations, and some non-profit organizations are excluded from the cap. Individuals seeking H-1B status through Indiana University are not subject to the H-1B cap.
For more information about the current fiscal year, please refer to the USCIS H-1B Cap Season Page.
Department of Labor:
Prior to submitting an H-1B petition to USCIS, a prevailing wage determination is requested from the Department of Labor. The prevailing wage determination is meant to provide a fair and equitable wage in the field of employment and geographical region. Once the prevailing wage determination is made, a Labor Condition Application (LCA) is filed with the Department of Labor. The LCA certifies that the wage being paid to the employee is the higher of either the actual wage offered to similarly employed individuals or the prevailing wage.
H-1B Filing Fees:
The university hiring department is required to pay a $325 application fee for all petitions filed and a $500 anti-fraud fee for new petitions. The employer is prohibited from passing the cost of these fees on to the beneficiary. In addition, an optional, premium processing fee of $1225 can be paid with the filing of an I-907 form if it is necessary that the petition be adjudicated by USCIS within 15 calendar days of receipt. All checks are made payable to the Department of Homeland Security in Laguna Niguel, CA, and are submitted by OIS with the H-1B petition and supporting materials.
The spouse and unmarried children under the age of 21 of an individual in H-1B status may hold H-4 dependent status. H-4 dependents may engage in full or part-time study. However, while in the US in H-4 status, H-4 dependents may not be employed.