H-1B Temporary Employment Visa
The H-1B status is reserved for the temporary employment of foreign nationals by a specific employer in a specific job. The job must qualify as a specialty occupation, as defined by the regulations. Federal regulations define "specialty occupation" as: "an occupation that requires (A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States".
Rutgers Global–International Faculty and Scholar Services is charged with filing all H-1B petitions on behalf of the university. All requests for H-1B sponsorship must be initiated by the hiring department on behalf of the foreign national. The beneficiary cannot self-petition for this category.
If you believe the H-1B Temporary Employment Visa is the best option for you, please contact your hiring unit for more information.
Who Qualifies for H-1B? +
Rutgers, The State University of New Jersey maintains a policy governing the employment of Foreign Nationals. Please refer to pages 7 & 8 for information specific to H-1B sponsorship and the appendix for eligible titles. (University Policy 60.1.2)
H-1B Responsibilities +
1. Generally, the total period of H-1B authorization may not exceed 6 years. This includes time previously spent in H-1B or L-1 status. Petitions for H-1B status may be submitted for up to 3 years at a time.
2. The H-1B status is employer, job title, salary, work location, and job description specific. You must notify ISSS in advance of any changes to your job title, duties, work location, or salary (aside from scheduled increases). You may not accept employment with a different unit or change job title or responsibilities at Rutgers before we file an amended H-1B application with USCIS.
3. Generally, there is a 10-day grace period granted at the end of one's H-1B status. During the grace period, the H-1B employee may legally stay in the U.S. but no employment is permitted. However, if employment is terminated early, there is no grace period.
4. An H-1B employee must notify ISSS immediately of any intent to terminate his/her employment with Rutgers before the expiration date of the approved H-1B petition.
5. In the event that the employment is terminated by Rutgers prior to the expiration date of the H-1B approval notice, the hiring unit is responsible for covering reasonable travel expenses for the employee’s return to his/her last country of legal residence. The hiring unit is not responsible for travel expenses if the employee voluntarily resigns.
6. H-1B extension petitions must be filed with USCIS prior to the expiration of the current H-1B approval. They can be submitted 6 months before the current H-1B expiration date. The hiring unit must initiate H-1B extension requests with ISSS at least 2 months before the current H-1B expiration date.
7. All H-1B employees must maintain passports that are valid for at least 6 months beyond their H-1B expiration date.
8. H-1B employees must report changes of address to USCIS within 10 days of moving by completing and submitting the Form AR-11 to USCIS, which can be found at http://www.uscis.gov.
9. Spouses and unmarried children (under the age of 21) of H-1B employees are eligible for H-4 dependent status. H-4 children who turn to 21, or who marry, are no longer eligible for H-4 status. H-4 dependents may legally study in the U.S., but are generally not authorized for employment in the U.S. (with some exceptions).
10. H-4 dependents' immigration status is contingent on the continued validity of the principal applicant's H-1B status. Loss of legal H-1B status by the principal applicant results in an automatic loss of H-4 status for their dependents.
11. Action taken to extend or change the H-1B employee’s immigration status does not automatically grant extension/change of immigration status for their dependents. H-4 dependents are responsible for submitting the Form I-539 to change or extend their immigration status. ISSS is not authorized to advise on or complete the Form I-539. The Form I-539 and filing/fee instructions are available online at www.uscis.gov.
12. It is the H-1B employee's responsibility to work with the sponsoring unit and/or University Human Resources to complete the I-9 Employment Eligibility Form. It is also the H-1B employee's responsibility to work with University Human Resources to update the Form I-9 upon filing and approval of any subsequent H-1B extension. The Form I-9 is not automatically updated upon the filing/approval of an H-1B extension. By law, the H-1B employee must submit proof of work authorization.
13. H-1B employees must notify ISSS in advance if they plan to spend more than 30 days outside of the U.S.
Challenges and Restrictions +
Please note that the H-1B status is employer- and job- specific. Any changes to the conditions of the H-1B beneficiary’s employment, including title, worksite location, job duties and salary, must be reported to ISSS prior to the change taking place. Any unauthorized changes may constitute a violation of the H-1B beneficiary’s immigration status.
212(e) 2-Year Home Residency Requirement
If the Foreign National was previously in the United States in J status, they may be subject to the 212(e) 2-year Home Residency Requirement.
If the Foreign National has not fulfilled the 2-year Home Residency Requirement or received a waiver approval from USCIS, they will not be eligible for H-1B sponsorship.
Minimum Length of H-1B Sponsorship: 1 Year
Except in limited cases, H-1B sponsorship must be for at least 1 year.
Maximum Length of H-1B Employment : 6 Years
Employers can sponsor Foreign Nationals for H-1B status in 1 to 3 year increments for a maximum period of 6 years.
Time previously spent in the U.S. in H-1B or L-1 status counts against the allowable 6-year maximum.
H-1B employees who have reached the 6-year maximum must reside outside the U.S. for at least 12 months before they can once again apply for H-1B status.
Foreign nationals arriving in the U.S. on an initial H-1B approval can arrive no more than 10 days prior to the start date of their employment. This time is given to procure housing and basic necessities. USCIS may also grant the foreign national a 10-day grace period at the end of their employment validity period to prepare for their departure. Be aware that no employment should be conducted during either grace period.
H-1B Initial Petition Options +
If the Foreign National is not in the U.S. at the time ISSS submits the H-1B petition to USCIS, the petition will be processed as a request for Consular Notification. This means that the H-1B petition will first need to be approved by USCIS. Then, once USCIS approves the H-1B petition and the Foreign National receives the I-797 Approval Notice, the Foreign National will then need to apply for an H-1B visa at a consular post outside of the U.S. (Please note that Canadian citizens are visa exempt. They only need to present the I-797 Approval Notice upon entry to the U.S.)
Individuals who have received a Consular Petition approval and obtained their H-1B visa are permitted to enter the United States up to 10 days prior to the H-1B validity start date, which is indicated on the I-797 Approval Notice. Once in the U.S., the foreign national must be placed on Rutgers payroll within 30 calendar days.
Change of Status
Foreign Nationals who are currently in the U.S in a different non-immigrant status* may wish to accept employment at Rutgers and be sponsored for H-1B status. This would require a petition to USCIS for a Change of Status. *Rutgers does not file Change of Status requests from B visitor status to H-1B.
The internal process at Rutgers for requesting a Change of Status to H-1B is the same as other H-1B requests. However, additional supporting documentation may be required from the Foreign National to demonstrate that they will maintain valid immigration status until their start date at Rutgers.
The petition for a Change of Status must be submitted to USCIS prior to the current status end date. Employment in the new position may not commence until an I-797 Approval Notice is received by ISSS from USCIS. In general, beneficiaries must maintain their non-immigrant status until the start date at Rutgers.
Foreign Nationals who have been in the U.S. in J status and who are subject to the two-year home residency requirement (INA 212(e)) are ineligible for H-1B status, unless the 212(e) requirement has been fulfilled or a waiver of the requirement has been approved by USCIS.
Currently on H-1B Visa Options +
Applications for an extension of H-1B status must be filed with USCIS prior to the expiration of the Foreign National's current H-1B status. Employers may file for extensions as early as 6 months prior to the expiration of the current H-1B status. Failure to file the application for extension prior to the expiration date of the current H-1B approval constitutes a violation of the H-1B employee's nonimmigrant status. H-1B employees for whom an extension has been filed with USCIS in a timely manner may continue their employment with the same employer for a period of up to 240 days while the application is pending with USCIS, provided our office has received written notification from USCIS indicating that the application has been received.
Individuals currently in the U.S. in H-1B status may choose to change employers. This is known as a “transfer” of status or H-1B portability. A transfer of H-1B status to a new employer requires that the new employer file an H-1B petition with USCIS on behalf of the prospective employee. Rutgers hiring units and prospective H-1B employees should keep the following in mind when considering a transfer to Rutgers:
The H-1B employee is allowed to begin his/her employment with Rutgers once (1) ISSS has filed the H-1B petition and received a receipt notice from USCIS and (2) the requested start date of employment at Rutgers has arrived. It is not necessary to wait for the petition to be approved for the Foreign National to begin his/her employment at Rutgers. The employment with the new employer may continue if USCIS has not denied the petition.
Time spent in H-1B status with another employer counts towards the 6-year maximum allowed in H-1B status. H-1B employees can become eligible for another 6 years of H-1B status once they spend a minimum of 12 months outside the U.S.
The H-1B beneficiary should not give notice of resignation to his/her current employer until Rutgers has filed its H-1B petition. H-1B beneficiaries are expected to maintain their H-1B status throughout the transfer process. If there is a gap between the beneficiary’s last day of employment at his/her current employer and start date at Rutgers, USCIS may find that the beneficiary has violated his/her immigration status. Rutgers hiring units are advised to work closely with ISSS to ensure that there is no gap in the foreign national’s employment.
Transferring from one Rutgers or RBHS department to another does not constitute a “transfer” of the H-1B status. Interdepartmental transfers fall under the “change in previously approved employment” category. Please contact ISSS for guidance on this issue.
Each H-1B approval is job title, job duty, and location-specific. Rutgers hiring units must contact ISSS if they anticipate any changes to an H-1B employee’s job title, job duties, or worksite location. In most cases, any of these changes will require the filing of an amended H-1B petition before the change can take place.
H-1B Travel +
In order to enter the U.S., H-1B employees must present the following:
Valid Passport - As a general rule, passports must be valid for six months beyond the date the traveler will exit the United States.
Valid H-1B Visa* - If you have changed H-1B employers and possess a valid H-1B visa annotated with the name of a previous employer, you may continue to use your original H-1B visa for entry into the United States.
Valid I-797 H-1B Approval Notice - Rutgers keeps all original I-797 Approval Notices on file. If you need to travel, please contact our office in advance to arrange a time to borrow your approval notice.
*Canadian citizens are visa exempt.
If you need to apply for an H-1B visa, you must schedule an appointment at a consular post outside of the U.S. You cannot apply for a visa within the U.S. For more information and a list of required documents, please consult the webpage of the applicable consular post. You can check Visa Appointment Wait Times here.
After arrival, it is your responsibility to access your Form I-94 Arrival/Departure Record and verify that you have been properly admitted. The Form I-94 governs your immigration status and duration of authorized stay. Accordingly, it is important that it is correct. Please note that U.S. Customs & Border Protection has the authority to limit your duration of authorized stay if your passport will expire prior to the expiration of the I-797 H-1B Approval Notice. If your duration of authorized stay has been shortened, promptly notify the International Faculty and Scholar Services office.
Automatic Visa Revalidation – Travel to Canada or Mexico with Expired H-1B Visa for 30 Days or Less
Under Automatic Visa Revalidation, certain nonimmigrants holding expired visas who seek to return to the U.S. may be admitted at a U.S. port-of-entry by CBP, if they meet certain requirements. For a full list of requirements, please visit the Department of State and CBP webpages. Before traveling under automatic visa revalidation, be sure to review these requirements carefully.
It is the responsibility of the H-1B employee to ensure that their dependents maintain valid immigration status in the U.S.
Spouses and children (under the age of 21)* of H-1B workers are eligible to apply for the H-4 dependent status by filing the Form I-539 (https://www.uscis.gov/i-539) if currently residing in the US**. It is the responsibility of the Foreign National to prepare and submit the form in a timely manner. As a courtesy, ISSS will enclose the Form I-539 concurrently with the H-1B petition. However, ISSS is not authorized to review or provide any legal advice pertaining to the Form I-539.
*Children born in the U.S. are not required to file for H-4 status.
**Dependents who are currently outside of the U.S. are able to apply for an H-4 visa at a U.S. consular post. (Canadians are visa exempt.) The Form I-539 does not need to be filed for dependents outside of the U.S.
Certain H-4 dependent spouses of H-1B nonimmigrants can file Form I-765, Application for Employment Authorization, if the H-1B nonimmigrant has already started the process of seeking employment-based lawful permanent resident status. Please contact an immigration attorney for any further questions regarding H-4 employment. For more information, please refer to the USCIS page here.