H-1B Visa Process for Administrators
The H-1B temporary worker visa is designated for individuals coming temporarily to the United States to perform services in a specialty occupation. A specialty occupation is defined as one that requires “theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor's or higher degree in a specific field, or its equivalent, as a minimum requirement." Please note that H-1B visa status is employment based and is employer and position specific. The hiring department is required to pay a salary to the individual that meets the prevailing wage as defined by the Department of Labor (DOL). The individual’s paycheck must come from the hiring entity (Harvard University or an affiliated hospital). Individuals receiving fellowship income are not eligible for H-1B visa status since fellowship is not considered remuneration for services provided to the University.
The below information is intended for department administrators working on visa sponsorship with the HIO. For more information about maintaing status on the H-1B visa for scholars, see here.
- The position needs to qualify as a “specialty occupation” and the applicant must hold the required degree in the field of employment. For example, an Assistant Professor in Economics will have a PhD in Economics and not another field of study.
- The position must be a temporary academic appointment (i.e., research and/or teaching). Harvard University does not sponsor visas for staff positions.
- The position must be paid by Harvard or an affiliated hospital at least the prevailing wage set by the Department of Labor (DOL). The position must be salaried. H-1B visa holders cannot be paid through stipends, honoraria, outside fellowships, or personal funding.
- Employment is specific to the H-1B petitioner and allows compensation only from the employer for the work described in the petition. Departments must inform the HIO in writing of any substantial changes in the employment such as change in end date, employment location, title, duties, source of funding. An amended petition may be required.
- Export Control Compliance--Per federal regulations, Harvard University must certify as part of the H-1B petition whether the University needs a license from the federal government in order to allow the prospective employee to access certain controlled technology or technical data.
- Harvard’s H-1B petitions must be filed by the Harvard International Office—use of outside counsel is not permitted.
- If the individual has had previous stays as a J-1 Exchange Visitor, documentation to demonstrate compliance with or a waiver of the 212e Two-Year Home Residency Requirement will be required.
During the H-1B information intake and review process, the HIO will determine whether the position and individual qualify for H-1B status. If the position is determined not to be a specialty occupation, or the salary will not meet the prevailing wage, H-1B status will not be possible.
H-1B status is generally limited to six years. Typically, the initial petition is for three years, with an extension for another three years. The six-year limit includes time in H-1B status with another employer. It may be possible to begin another six-year period in H-1B status after an individual has spent at least one year outside the U.S.
Requesting H-1B Sponsorship (including H-1B Extensions and H-1B Portability)
Departments must initiate the H-1B sponsorship process with the HIO at least six months in advance of a scholar’s H-1B start date to ensure timely filing and adjudication of the petition, allow time for the individual's visa application (if needed), and facilitate international travel. An H-1B petition involves processing time by two government agencies, the U.S. Department of Labor (DOL) and the U.S. Citizenship and Immigration Services (USCIS).
1. Department submits Prevailing Wage Request Form to HIO (at least 6 months before H-1B start date)
To initiate the H-1B request process, a department must first submit to the HIO a Prevailing Wage Request Form, at least six months before the individual’s current visa end date or proposed H-1B start date. Please note that this timeline and process also applies to H-1B extensions and portability (change of employer/department) cases. Upon receipt of this form, the HIO will determine whether the position and salary meet the specialty occupation and prevailing wage requirements for the H-1B.
2. HIO evaluates eligibility for H-1B (10 business days)
The HIO assessment of the Prevailing Wage Request Form will take up to 10 business days; the HIO will confirm eligibility with the department and share instructions for the next steps in the process.
3. HIO submits Labor Condition Application to DOL (10 business days for DOL to certify)
After determining eligibility for an H-1B visa, the HIO will then submit a Labor Condition Application to the U.S. Department of Labor (DOL) to initiate the H-1B application process.
Employers are required to obtain this prior clearance from the DOL before an H-1B petition may be filed with USCIS. Specifically, employers are required to file a Labor Condition Application (LCA), Form ETA 9035 with the DOL, making certain attestations concerning the determined prevailing wage, working conditions, and possible labor disputes. This process applies to both initial and extension H-1B petitions. The LCA takes the DOL 10 business days to certify. The HIO must complete certification with the DOL before it can submit an H-1B petition to USCIS.
4. Department requests filing fee checks from Accounts Payable (AP processing at least 3 weeks)
After the HIO has determined that an H-1B position will meet the prevailing wage, the HIO Advisor will send the department instructions and a checklist for the remainder of the H-1B supplemental materials. These instructions will include details about the required H-1B filing fees. The department must request checks to pay the required governmental processing fees from Harvard’s Accounts Payable office at least one month before the H-1B will be filed. The Harvard-sponsoring department is required to pay all filing fees for the H-1B petition. Note that the scholar cannot pay the filing fees per the Office of General Counsel.
Details about filing fee totals are included in the H-1B Step II Instructions emailed to the department administrator. Questions about required H-1B filing fees should be directed to your HIO advisor.
5. Department and scholar compile supporting documentation and HIO intake forms (timing varies – HIO advisor will confirm deadline)
It is the department’s responsibility to work with the individual to obtain all required supporting documentation indicated on the HIO’s H-1B checklist. Departments should set a reasonable deadline with their HIO Advisor for submission of the supporting documentation.
6. HIO reviews all supporting materials; prepares H-1B petition forms (20 business days)
After the completed intake forms and supporting documentation are submitted to the HIO, your HIO advisor will prepare the relevant USCIS petition forms, assemble the H-1B materials, and ship the petition to USCIS for processing. Once supplemental H-1B paperwork is submitted to the HIO, HIO processing time is up to 20 business days from the time that complete information is submitted.
7. HIO submits H-1B petition to USCIS; USCIS makes decision within 15 calendar days (premium processing) or several months (regular processing)
The standard processing time for an H-1B petition is four to six months or sometimes even more. The petitioning department has the option of paying an additional Premium Processing fee to secure a more favorable processing time. With Premium Processing, the USCIS guarantees that it will either issue an approval, request additional evidence, or send notice of intent to deny within 15 calendar days from the date the petition was received at a USCIS Service Center. Questions about Premium Processing and whether it is necessary or beneficial should be directed to your HIO advisor. Note that payment of premium processing only applies to the final step in the H-1B process – the USCIS adjudication. It does not affect the DOL or HIO processing times.
Change of Status vs. Consular Notification
There are generally two ways that an individual may go about obtaining H-1B status: through a change of visa status within the U.S. or through Consular Notification outside of the U.S. In both cases, the department must work with the HIO and follow the steps outlined above to first submit an H-1B application to USCIS.
The first method to obtain H-1B status is known as a change of status petition. Generally, individuals in the U.S. who have filed a timely application for change of status to H-1B or have filed an application for extension of stay can remain in the U.S. while their application is pending with USCIS. This option is only available to individuals who have been maintaining a valid nonimmigrant status through the filing of the application. It is essential that the applicant remain in the U.S. while the change of status petition is pending with USCIS or it will be denied.
The second method is referred to as Consular Notification. If the scholar is abroad or has travel plans to go abroad, that individual may apply for an H-1B visa at a U.S. Embassy or Consulate after the H-1B petition is approved by USCIS. The visa stamp from the U.S. Embassy or Consulate is required for that individual to enter the U.S. in H-1B visa status. Canadian citizens are exempt from the visa requirement and may enter the United States directly in H-1B status on the basis of the H-1B petition approval notice. Consular notification may also be an option worth considering if the individual has dependents who will need to obtain H-4 dependent status.
The HIO will assist departments in evaluating which option is appropriate for the scholar depending on department needs and the individual’s plans.
H-1B vs. J-1: Differences to Consider
J-1 visa status may be preferable to H-1B for many non-tenure track positions, because it:
- Allows changes in funding sources (grants/salary/personal funds);
- Allows remuneration for occasional lectures or short-term consultations, incident to status;
- Maximizes scholar’s time as a nonimmigrant before acquiring H-1B status (if using J-1 status for up to 5 years);
- Allows J-2 spouses to apply for employment authorization from USCIS;
- Is a much faster process, taking only days for the HIO to issue a DS-2019 for the scholar to use to apply for a J-1 visa;
- J-1 carries no cost to academic departments, while H-1B government filing fees must be paid by academic departments; and
- May be beneficial regarding income tax.
Changes in Employment
During sponsorship of an H-1B visa, departments must notify the HIO of any substantial changes in employment, including:
- a new or additional location
- change in duties
- change in title
- change in amount or source of funding
- added teaching or supervisory duties
USCIS regulations may require the employer (HIO) to notify USCIS of such changes; in some cases, a new H-1B petition must be filed. Failure to notify the HIO may result in fines and penalties imposed on the University and the revocation of the petition/visa approval.
Extending an H-1B
Extending H-1B visa status requires the same documentation and processing as an initial H-1B visa request. For more information, please see the “Requesting H-1B Sponsorship” tab above.
The earliest that the HIO may file an H-1B extension with the U.S. government is six months in advance of the prior H-1B end date, unless there has been or will be a change to the scholar’s position from the original H-1B filing, as an amended petition may be filed at any time as needed. The HIO strongly recommends that the department prepares the application materials as early as possible. If funding support for the individual’s position is in question and may not continue, departments must alert their HIO advisor immediately so they can advise accordingly. As noted above, an H-1B petition involves processing time by two government agencies, the U.S. Department of Labor (DOL) and the U.S. Citizenship and Immigration Services (USCIS); sufficient time to prepare the filing is essential.
Initiating the extension six months before the expiration of the current H-1B status ensures timely filing and adjudication of the petition, time for the individual's visa application at a U.S. embassy or consulate (if needed), facilitates international travel, and averts a lot of unnecessary anxiety for both the department and the individual.
Changing Employers (H-1B Portability)
When an incoming scholar is currently in the U.S. in H-1B status, they must wait to begin work at Harvard until the HIO has filed a new H-1B petition for this individual. The process of changing employers on the H-1B visa is called H-1B Portability.
Please note, even for portability petitions, the HIO and the department still must file the petition with USCIS and preparation time to assemble the H petition is still needed.
Under H-1B portability provisions, individuals currently in H-1B status with one employer can begin employment with a new employer (or new employment with the same employer) once the following two points are true:
- USCIS has received an H-1B petition for the new H-1B employment from a new employer (or from the same employer for new employment); and
- The requested start date of the H-1B has occurred.
The HIO will be able to assist departments in evaluating whether portability rules apply and when the person could begin working for the Harvard sponsoring department.
Spouses and unmarried children under 21 are eligible for H-4 visa status. Individuals in H-4 status are not permitted to work in the U.S. H-4 dependents may study in the U.S., full-time or part-time, for the duration of the H-4 (and the primary’s H-1B) status.