Overview of the Requirements and Limitations of H-1B status

  • The hiring department must initiate the H-1B application process on behalf of the international that they want to sponsor and provide the required paperwork to ISSS. 
  • There must be a clear employer-employee relationship. Defined by a contract or appointment letter which specifies terms and conditions of employment, including job title, duties, salary, dates, and benefit offered. 
  • The employer must pay the wages, cannot come from a third party.
  • The employer must agree to pay the return airfare for the H-1B worker return to his or her home country if employment is terminated before the authorized H-1B period expires. Return transportation is not required in case of voluntary resignation or termination is initiated by the employee.
  • Employer may request up to three years on the initial H-1B petition and extension for up to three additional years for a total of six years of eligibility. 
  • Time spent outside the U.S. may be "recaptured" if the absence is documented and therefore would not count toward the six year participation limit. 
  • An individual may be eligible for another six-year period if he or she remains outside the U.S. for one year or more.
  • Certain individuals with pending employment-based permanent residency petitions may be eligible for an extension beyond the 6th year.
  • H-1B status recognizes dual intent. The employee may pursue permanent residency while in H-1B status.
  • An employee who has been in J-1 or J-2 status and is subject to the Two-Year Home Country Physical Presence Requirement must either satisfy this requirement by returning to his/her home country for at least two years at the end of the EV program or obtain a waiver of this requirement before becoming eligible for H-1B status. The waiver process can take three to six months or more.