Frequently Asked H-1B Questions

Question: I am in F-1 OPT/STEM OPT or J-1 status and want to change of H-1B? What do I need to do?

1. You must be in a sponsorable appointment title that allows for H1B sponsorship. Only certain appointment titles at UC San Diego are eligible for H-1B sponsorship, per institutional policy; see PPM 200-16, "Supplement 1"
2. You must be employed full-time 100% with a salary paid by UC San Diego
3. The department administrator must initiate the H-1B request with ISEO.
4. The department chair must be willing to support the H-1B petition and pay all associated H-1B fees.

Question: I am in F-1 OPT/STEM OPT status and want to change to H-1B. See steps I-4 above.

Answer: Most international researchers come to UC San Diego in J-1 Exchange Visitor status, which affords them additional time to build up a strong case for permanent residence, if this is an ultimate intention; in addition, H-1B petitions are very labor-intensive and expensive.

In addition, to bypass the J-1 classification, you and your supervisor will need to review and sign the bottom of page 2 of the J-1 or H-1B: A Comparison (PDF), and submit with the H-1B initial request.

This form is not needed if the scholar is currently in J status or is ineligible for J status.

Question: What are the fees for an H-1B?

Answer: ALL H-1B fees MUST be paid by the sponsoring department. Fees are not rechargeable to the international scholar and scholars cannot reimburse the department for these fees.

Question: What are the Processing times for the H-1B?

Answer: See website for Processing Timeline Overview

Question: When should the department submit the H-1B petition?

Answer: We recommend departments submit the H-1B request to ISEO 7-8 months before the H-1B requested start date. Important note, we must have the official appointment offer or reappointment letter in order to submit the H-1B petition to USCIS.

Question: I am subject to the J-1 Two-Year Home Residence Requirement 212(e), when should I apply for the waiver?

Answer: In order to apply for the H-1B you must have the waiver approval or have fulfilled the two-year home residence requirement in order to be eligible. Every individual’s case may vary with different processing times for their home country’s government for the No Objection Statement.

Important:  Contact the International Services and Engagement Office (ISEO) to speak with an advisor before submitting your waiver application. Applying for the waiver prematurely will affect your current J-1 status. Once the waiver is recommended by the U.S. Department of State (DOS), you can no longer receive any additional benefits of the J-1 status, such as an extension of stay. Applying for a new J-1 visa stamp in your passport may resubject you to 212e. Our office is unable to provide further assistance with applications for waivers. In complex cases, you may wish to consult with a private immigration attorney. For information regarding how to find and select an Attorney visit our Legal Matters webpage.

Question: How long can I get an H-1B?

Answer: Departments may initially request an H-1B petition for up to three (3) years of employment and later request extensions to total six (6) years.

Question: What are the exceptions to the 6-year maximum for H-1Bs?

• H-1B status may be extended in three-year increments up to a total of six years.
• Persons with an approved I-140 immigrant petition who are not able to file an adjustment of status petition due to visa bulleting backlog may extend their H status beyond six years in increments of up to three years.
• Persons with an I-140 or labor certification that has been pending for 365 days or more are eligible for H-1B extensions beyond six years in increments of one year
• Time spent outside the U.S. during the six years of H-1B can be recaptured. To request recapture of H-1B time, follow the H-1B extension/amendment application instructions.  
  • You must provide evidence of H-1B time spent outside the U.S. (I-94 travel history, entry stamps, exit stamps, boarding pass, itineraries, etc.) as well as complete the H-1B recapture chart.  

Question: I am a Postdoctoral Scholar Employee and will be promoted to an Assistant Project Scientist or Research Scientist. Can I keep working on my current H-1B?

Answer: Substantive changes in H-1B employment must be received by USCIS with an amended petition submitted prior to the change in employment circumstances; substantive changes include moving between represented and nonrepresented positions or between different represented positions, or from research to clinical care.  A normal stepwise progression within an employment series (e.g. Assistant Project Scientist to Associate Project Scientist) will not require an amended petition.

Question: Is UC San Diego subject to the H-1B cap?

Answer: No, UC San Diego is cap exempt and can file H-1Bs all year long as a non-profit institution of higher education.

Question: Can I work for UC San Diego and another company on my H-1B?

Answer: The H-1B is employer and position specific. H-1Bs require 100% employment at UC San Diego.

Part-time H-1Bs require ISEO Director’s exception approval. Working at another H-1B company requires a separate concurrent or change of employer H-1B petition filed by the other employer.

Question: I have an H-1B at UC San Diego and I want to look for jobs in industry for employers that are subject to the cap. Will I need to register and apply for the H-1B lottery?

Answer: If you are interested in working at an outside company, you will need to discuss H-1B port (transfer) procedures with the new employer or immigration attorney representing that employer. In general for H-1B cap subject petitions, there is a registration process in March and if selected in the lottery the H-1B would begin on 10/1 start of the new fiscal year.

Question: I previously had an approved H-1B that was accepted in the lottery, then transferred to UC San Diego, I am thinking of applying to transfer to another H-1B cap subject employer. Do I need to apply for the H-1B lottery again?

Answer: We recommend you consult with an immigration attorney. You may not have to apply for the lottery again if you were previously accepted, check with an attorney to confirm.

Question: My spouse and children are currently in J-2 or F-2 status, how do they change to H-4 status?

Answer: See H-4 Family Resources

If they are inside the US they can apply for change of status to H-4 by submitting a Form I-539 with USCIS. If there are outside the US, they can apply for H-4 visas stamps at the US Embassy outside of the US with your H-1B approval notice. 

Question: My spouse is currently in J-2 status and has an EAD, can my spouse work as an H-4 dependent?

Answer: There are limited exceptions for an H-4 to obtain an EAD card. See USCIS’s website

Certain H-4 dependent spouses of H-1B nonimmigrants can file Form I-765, Application for Employment Authorization, if the H-1B nonimmigrant:

• Is the principal beneficiary (H-1B) of an approved Form I-140, Immigrant Petition for Alien Worker; or
• Has been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (AC21).