H-1B Temporary Workers
The H-1B temporary worker visa is designated for individuals coming temporarily to the United States to work in a specialty occupation. A specialty occupation is defined as one 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.
The employer must provide documentation to prove that the job requires someone with special qualifications and that the intended employee meets those qualifications. Furthermore, the department is required to pay a required salary that meets a minimum set by the US Department of Labor to the intended employee. The individual’s paycheck must come from the hiring entity. H-1B visa status is employment based.
The United States Citizenship and Immigration Services (USCIS) makes the final decision on whether the individual qualifies for the H-1B visa classification. The H-1B visa is employer specific, which means that a USCIS approved H-1B petition that was submitted by Middlebury College/Middlebury Institute of International Studies at Monterey (Middlebury) authorizes the scholar to work only in the position specified in the petition. A scholar who has an H-1B visa approval from another employer is not automatically eligible to work at Middlebury/MIIS. An H-1B worker may work for more than one employer at the same time, but each employer must file a separate H-1B visa petition.
ISSS is notified of the hire and given a copy of the contract/offer letter. Then ISSS will contact the prospective employee to obtain the necessary information and documentation. ISSS will prepare and submit a Labor Condition Application (LCA) which takes 1 to 2 weeks to be certified. After the LCA is certified, ISSS will then prepare the H-1B petition (I-129 form) and all the required supporting documentation and submit it to USCIS. Please note the estimated time it takes for ISSS to do all the required steps to prepare and file an H-1B petition with USCIS is about 2 months. USCIS can take several months to approve an H-1B petition. The LCA and the H-1B petition legally cannot be done any more than 6 months before the intended start date of the position and/or intended H-1B status period.
Once the H-1B petition has been approved by USCIS, an approval notice (I-797 Approval Notice) will be sent to the employer. The employer will give copies of the petition and the approval notice to the employee.
If the employee is not in the United States at the time of the approval, the employee can then apply for an H-1B visa at a US Embassy or Consulate in order to travel to the U.S. to enter and be granted H-1B status.
If the employee is in another status, the employee may begin work in the H-1B status once the approval notice is received by the employer and the start date has been reached whichever is later.
If the employee is in H-1B status either with Middlebury or another employer, the employee can begin working as soon as proof that USCIS received by Middlebury and the start date has been reached whichever is later.
Checking In and Orientation
All new employees in H-1B status must complete a check in and orientation with ISSS upon arrival. They also must go to Human Resources to do the I-9 process and the Tax Office to do the necessary tax documents. Checking in and the I-9 process is supposed to be done within the first three days of employment.
Length of Stay
H-1B status holders are eligible for a total maximum stay of six years. The six-year limit includes time spent on the H-1B visa with another employer. The initial H-1B petition may cover a period up to three years. Extension petitions may be made for a period up to no more than 3 years, to equal the 6 year maximum time limit.
Since this six-year limit is strictly enforced, it is important to plan accordingly. It may be possible to begin another six-year period as an H-1B status holder after the individual has spent at least one year (12 months) outside the United States.
Exceptions to the six-year rule: If an individual is at a certain stage in the application of legal permanent residency with USCIS, s/he may be eligible for an extension beyond the 6-year maximum. ISSS will work with the individual to determine if s/he is eligible for the extension beyond the 6-year maximum.
The H-1B status is employer/position specific, which means that an USCIS approved petition that was submitted by Middlebury authorizes the H-1B status holder to work only in the position specified in the petition at Middlebury. An individual who has an H-1B approval from another employer is not automatically eligible to work at Middlebury in any other position. An H-1B worker may work for more than one employer, but each employer must file a separate H-1B visa petition.
Last updated 1/13/2022