H-1B Visa

The H-1B Visa Overview

The H-1B visa category is designated for individuals coming temporarily to the United States to perform services in a specialty occupation. A specialty occupation is defined as an occupation which requires theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor's degree or higher for the specific specialization. The University normally only files H-1B visa petitions for faculty and research scholars. It is the policy of the University to process H-1B visa petitions only for academic appointments.

The Department of Labor (DOL) regulates that employers bear a certain liability when filing H-1B petitions. Employers must make attestations about the wages for H-1B positions, and they must guarantee the return fare home if employment is terminated before the end of the period of authorized stay. Willful violation of the regulations can result in the assessment of fines and the prohibition of filing H-1B and permanent residence petitions for one year.

A Labor Condition Application (LCA) must be filed by the HIO, and approved by DOL., and posted within the Harvard department before an H-1B petition can be filed. The LCA requires that departments certify that the salary being paid by the department to the H-1B applicant is the higher of the prevailing and actual wage.

The prevailing wage is the average of the rate of wages paid to workers similarly employed in the area of intended employment. "Similarly employed" means having substantially comparable jobs in the occupational classification in the area of intended employment. The University uses prevailing wage data provided by the Department of Labor (DOL) and cannot file H-1B petitions for positions that do not meet the prevailing wage as determined by the DOL.

The actual wage is the amount paid by the employer to all others in the department with similar qualifications and experience as the intended H-1B worker.

It is not possible to file an H-1B petition for scholars supported by personal funds, by fellowships, or outside sponsors. In addition, individuals who already hold H-1B status may not apply for extensions of their status unless the salary meets the prevailing wage.

Once a decision to pursue H-1B status has been made by the HIO, the academic department should follow instructions for the H-1B visa processing.

Characteristics of the H-1B Visa

The H-1B visa is employer-specific. Since it is possible to be employed in a part-time position as an H-1B visa holder, a scholar holding appointments at two or more institutions would need an approved H-1B petition from each employer.

Once a scholar is in H-1B visa status sponsored by Harvard, the HIO must be informed in writing of any substantial changes in the scholar's employment, such as a new location, different duties, a change in the source of funding, or a change of hours. The HIO may be required to file a new prevailing wage application, a new Labor Condition Application, and an amended visa petition.

The initial H-1B visa can cover a period of up to three years. It can be extended for a maximum period of three additional years. In general, the maximum amount of time a scholar may spend in H-1B status is six years.

J-1 visa holders are not eligible for the H-1B visa if they are subject to the two-year home country residence requirement and have not yet received a waiver of this requirement.

The dependents of an H-1B visa holder are classified as H-4 and are not eligible for employment under any circumstances.