H-1B Overview

H-1B is a nonimmigrant visa status for an international worker who will perform services in a specialty occupation which requires highly specialized knowledge and a minimum of a bachelor's degree.  For the H-1B, the employer is the petitioner and the employee is the beneficiary. The H-1B is authorized according to specifics in the petition.

  • Employer: H-1B employees may only work for the employer listed in the approved petition.
  • Position: The H-1B is approved for a specific job, salary, and hours per week. Any changes to the position may require an amended H-1B petition. 
  • Location: The H-1B is approved for the employee to work in a specific location. A change in location (including departments, campuses, or remote work) may require an amended petition. 
  • Time: An H-1B may be initially requested for a maximum of three years. An H-1B can be extended, but the maximum amount of time an individual may hold H-1B status is 6 years, with a few exceptions. Sponsorship for an H-1B begins with the employee's department. Hosting departments may contact internationalscholar@kennesaw.edu with questions regarding an H-1B for their employee. Please note that final sponsorship for an H-1B is dependent upon departmental support, review of the required documentation, and ultimate approval by USCIS.

General H-1B Process

The non-immigrant petition process is a detailed and lengthy process, requiring authorization from both the Department of Labor and USCIS. Generally, it takes between two to six months to process an H-1B non-immigrant petition, not including the time needed for data collection by the university. Please note that if information obtained from the department or employee indicates that H-1B sponsorship cannot legally be pursued, the H-1B process will cease.

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Data is collected from the department and employee regarding eligibility for H-1B sponsorship.

 

A Labor Conditions Application (LCA) is filed with the Department of Labor.

 

Upon approval of the LCA by the Department of Labor, the H-1B petition is submitted to USCIS. 

 

If approved, USCIS will issue an I-797A approval notice, which will be sent to the ISSSO and then provided to the employee.

 

Employees with an approved H-1B petition should contact Human Resources to make sure their information is properly updated.

  • H-1B employees should be aware of the following:

    • Start Date and Entry Date: For those who applied for a change of status within the U.S., the H-1B effective date will be noted on the I-797A and the employee is considered to be in H-1B status as of that date. For those outside the U.S., applying for an H-1B visa (unless visa exempt) will be necessary prior to entering the U.S. for H-1B employment. Those entering the U.S. for the first time in H-1B status, may enter the U.S. with a valid H-1B visa no earlier than 10 days before the effective date of the H-1B petition.
    • Changes in Employment: Since the H-1B is approved for a specific position (including title, duties, location, salary, and employment dates), any potential changes to this employment must be reported to the ISSSO prior to the change taking effect. An amended petition may be required before this change can take effect.
    • H-1B Expiration Date and Extension: H-1B extensions should be requested no later than 6 months before the expiration of the current H-1B status. Although the ISSSO will generally send reminders to the department, it is also the employee's responsibility to track their expiration date and follow up as necessary. Departments are under no obligation to request an extension of H-1B status for their employees and action will only be taken upon the request of the department. If a department does not approve sponsorship of the extension, the employee will need other means of continued employment eligibility to continue work once the H-1B authorization period has expired.
    • Travel: Generally, you will need the following in order to re-enter the U.S.
      • Valid passport (please also see the information about passport validity under I-94 Dates below) 
      • Original I-797A Approval Notice for current H-1B position
      • Documentation of employment such as paystubs and/or a letter from the ISSSO
      • Valid H-1B stamp in passport, unless you are visa exempt. Please see the Travel FAQs for more information.
    • I-94 Dates: When admitted to the U.S., CBP will issue an I-94 annotated with H-1B and an expiration date. This I-94 is retrievable at https://i94.cbp.dhs.gov/I94. Always check your I-94 expiration date when entering the U.S., and submit a copy to the ISSSO upon entry. The I-94 is evidence of legal status in the U.S. The expiration date on the I-94 controls your H-1B status in the U.S. and is the date by which you are expected to depart the U.S. Some individuals find that the I-94 lists an expiration date which is earlier than the date listed on their I-797A H-1B approval notice or visa. This usually happens because their passport expires before the expiration date on the approval notice.  If this happens to you, please contact the ISSSO for options. 
    • Changes in Address: All non-citizens are required to update their address with the Department of Homeland Security within 10 days of moving.  See https://www.uscis.gov/addresschange for details on how to update your address.

H-1B FAQ

The below FAQ is designed to answer some common questions and provide guidance regarding H-1B status visa status. All information provided on this website is intended to be an aide, and does not represent advice surpassing that of a qualified immigration attorney.

Obtaining H-1B Status

  • Although most employers are subject to the “H-1B cap”, universities are exempt from this cap. This means that KSU can apply for an H-1B at any time.
  • No. Only time in H-1B (or L-1) status counts against your H-1B time.
  • Individuals who are already in H-1B status with another employer may “port”, or transfer, their H-1B to another employer. These individuals may begin working as soon as a KSU-sponsored H-1B petition has been filed with USCIS and we receive a USCIS receipt notice confirming the filing.
  • No. Travelling while a change of status application is pending is deemed an abandonment of the petition. Should you travel while the H-1B change of status is pending, you will have to remain outside the U.S. until the petition is approved and apply for an H-1B visa at a U.S. embassy or consulate abroad. Please also note that if you choose to travel outside the U.S. after your H-1B is approved, you will need to apply for an H-1B visa at a U.S. embassy or consulate before returning to the U.S.
  • If a change of status or extension of status was requested, the change/extension takes effect automatically on the date listed on the approval notice. USCIS will send a new I-94 card evidencing your H-1B status along with the H-1B approval notice. If a change of status is not approved for you, you will need to apply for an H-1B visa at a U.S. embassy or consulate. Please see the H-1B Travel and Visas section of this webpage.

 

Maintaining H-1B Status

  • No. An H-1B is employer and job specific. That means you cannot work at KSU with an H-1B sponsored by another employer and you cannot use your KSU-sponsored H-1B to work elsewhere unless you have appropriate authorization. It also means that your H-1B is only good for the job as it was described on your H-1B petition. Should you change jobs, get promoted, etc., you and your department must contact the International Student and Scholar Services Office at internationalscholar@kennesaw.edu before the change occurs so that an amendment to your H-1B petition can be filed.
  • Yes. Because H-1B is job-specific, your current H-1B is only valid for your current position as it was described in the H-1B petition. If any changes occur (promotion, demotion, salary changes, changes in hours, etc.), your department must contact the ISSSO before the change occurs so that we may evaluate whether an amended H-1B petition is necessary.
  • The application for an extension of stay must be submitted before your current authorized stay expires. It is advisable to apply for the extension as early as 6 months in advance due to possible long processing times by the Department of Labor and USCIS. While applying for your H-1B extension, please don't forget to apply for H-4 extension(s) for your dependents. Your dependents will NOT get automatic extension based on your H-1B extension, so you have to apply separately for them.
  • Yes.  KSU must update an H-1B petition if any “material changes” occur. Resignation is a material change. Please let the ISSSO know of your decision to leave KSU prior to your resignation effective date so that we can fully comply with this obligation.

  • Regulations require an H-1B employer to notify USCIS of "any material changes in the terms and conditions of employment" affecting an H-1B employee. USCIS policy indicates that employment termination constitutes a material change. The notification obligation is satisfied by sending a request for an LCA withdrawal to the Department of Labor and an H-1B withdrawal to USCIS. After receipt of this request, USCIS automatically revokes the H-1B petition.

    There is no grace period for terminated employees holding H-1B status. Once the employment relationship terminates, the H-1B employee is out of status and must, therefore, leave the U.S. immediately or seek another non-immigrant status. 

    Federal law requires that employers who terminate the employment of an H-1B worker before the expiration of their current H-1B status must pay the reasonable cost of return transportation to the employee's last residence abroad. This provision only covers instances of termination before the expiration of H-1B status, not resignations or terminations that coincide with the current H-1B status expiration. This provision also only covers return transportation for the employee, not for dependents or material possessions. Departments are expected to cover these costs and should keep this provision in mind when hiring an H-1B employee. Contact the ISSSO for more information regarding the return transportation requirement.

 

H-1B Travel and Visas

  • You will need to apply for an H-1B visa at a U.S. Embassy or Consulate abroad. Check the website of the embassy or consulate for information on how to submit the required application, fees, photos, and to schedule an interview appointment. Generally, you will need to bring the H-1B approval notice. a copy of the H-1B petition packet, and documentation of continued employment. Each embassy or consulate conducts interviews a little differently, however, and it is best to check with the embassy for details regarding what documents to bring to the interview.

    Please note: If you are entering the U.S. for the first time in H-1B status, you may enter the U.S. no earlier than 10 days before the effective date on the I-797A Approval Notice.

  • Some professions and areas of study or research require additional administrative and security checks before the embassy official can confirm visa eligibility. This often happens with professions involving computers, chemistry, and neuroscience. Applicants are advised of this requirement when they apply for a visa at the U.S. embassy or consulate. When administrative processing is required, the timing will vary based on individual circumstances of each case. Visa applicants are reminded to apply early for their visa, well in advance of the anticipated travel date.

  • Have the following documents on hand when seeking entry to the U.S.:

    • Original I-797 approval notice
    • One photocopy of the full H-1B petition, including the LCA
    • Valid passport. In order to avoid possible problems entering the U.S. (please see note below), we recommend that your passport be valid for at least six months beyond the date you plan to remain in the U.S.
    • Valid H-1B visa.
    • Proof of employment, such as three most recent paystubs and an employment letter from KSU 
  • In certain cases, non-immigrants with an expired non-immigrant visa may return to the U.S. after a short stay in Canada or Mexico without having applied for a new visa; in such cases, their expired visa would be considered revalidated. Please review the Department of State and Customs and Border Protection websites for more information.

  • Customs and Border Protection (CBP) will often stamp an I-94 with an earlier expiration date than the petition expiration date where the individual’s passport expires before the H-1B petition expires. The I-94 card controls the expiration of your status in the U.S.  This means that remaining in the U.S. beyond the date listed on your I-94 card is a violation of status, no matter what your H-1B approval notice says. The easiest way to fix this is often to renew your passport and exit and re-enter the U.S. When you re-enter the U.S. with the new passport, CBP will provide you with a new I-94 card which should be stamped with the H-1B petition expiration date. For additional information, please contact the ISSSO.

    When you return to the U.S., please provide the ISSSO with a copy of your new I-94 and visa.

  • No. Travelling while a change of status application is pending is deemed an abandonment of the petition. Should you travel while the H-1B change of status is pending, you will have to remain outside the U.S. until the petition is approved and apply for an H-1B visa at a U.S. Embassy or Consulate abroad. Please also note that if you choose to travel outside the U.S. after your H-1B is approved, you will need to apply for an H-1B visa at a U.S. embassy or consulate before returning to the U.S.

  • You can travel while your original H-1B petition is still valid or if your extension has already been approved and you have evidence of the extension. Keep in mind that you will need a new H-1B stamp to enter the U.S. if your old stamp has expired.

    If your travel plans extend beyond the date your current H-1B status expires and the extension has not yet been granted, however, you won’t be allowed to re-enter the U.S. until the petition has been approved and you have applied for an H-1B stamp at a U.S. embassy or consulate abroad.

 

H-4 Dependents

  • Dependent spouses and children under the age of 21 may be eligible for an H-4 dependent status. Applying for maintaining the status of all H-4 dependents is the responsibility of the H-1B holder.

    If your dependents are currently in the United States in another dependent non-immigrant status (J-2, F-2, etc.), an I-539 Application to Change/Extend Non-immigrant status will need to be filed. You are responsible for the filing of this application.

    If your dependents are currently abroad, they will need to apply for H-4 status at a U.S. Embassy or Consulate abroad. They may do this when you apply for the H-1B visa or at a later date.

  • H-4 dependents may not work in the United States except in limited circumstances related to a permanent residency application.
  • Yes. H-4 dependents may attend classes at a U.S. university. However, H-4 dependents may not hold employment in the U.S. except in limited circumstances. That means that most likely your spouse and/or children cannot hold student assistant or graduate assistant positions on campus. 

 

Other Frequently Asked H-1B Questions

  • All income earned in the U.S. is taxed. Certain international employees are eligible for tax treaty benefits depending on their home country and profession. For more information, contact internationaltax@kennesaw.edu. 
  • You may be eligible for a one-time extension based on a pending USCIS application. Please see the Georgia Department of Driver Services website for more details.
  • Yes. The University System of Georgia has a great Tuition Assistance Program available for faculty and staff and we encourage you to take part in it. Keep in mind, however, that the primary purpose of your time in the U.S. must continue to be employment. If your primary purpose changes to studying, you should not be in H-1B status. NOTE: KSU does not sponsor part-time employees for H-1B status.
  • You may volunteer in positions that are traditionally seen as “volunteer” positions. For instance, volunteering at a food bank, homeless shelter, church, etc. are likely within the realm of normal volunteering opportunities. Defining a position as “unpaid” or “volunteer”, however, does not mean that it is a legitimate volunteer position under USCIS guidelines. A person may not perform work as a volunteer in a position that would normally be a paid position or if the foreign national believes some form of compensation will follow. Doing so is considered working without authorization and is a violation of non-immigrant status.