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  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. These fees cannot be charged to the international scholar, nor can scholars 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. See website for Processing Timeline Overview.

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 a Scholar 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. 

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. (such as I-94 travel history, entry stamps, exit stamps, boarding pass, itineraries, etc.).

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 transitions between represented and non-represented positions, shifts between different represented positions, or changes in duties such as from research to teaching or from research to clinical care. Additionally, adding a worksite outside of the metropolitan statistical area requires an amended petition. However, a normal stepwise progression within an employment series does 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-1B petitions year-round as a nonprofit institution of higher education. Universities, affiliated nonprofit entities, nonprofit research organizations, and government research organizations are all exempt from the H-1B cap. These employers can submit H-1B applications to USCIS at any time during the year without worrying about the fiscal year limit. However, if someone working for a cap-exempt employer changes jobs to a non-exempt employer, they may become subject to the H-1B cap (commonly known as the “regular cap”).

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

Answer: The H-1B status is employer- and position-specific. UC San Diego requires H-1B employees to maintain 100% employment with the university. Exceptions for part-time H-1Bs must be approved by the Assistant Director of ISEO’s Scholar Services. If you wish to work for another employer, a separate change of employer H-1B petition must be filed by that 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 consulting with an immigration attorney. If you were previously accepted in the H-1B lottery, you may not need to apply for it again. However, it's essential to verify this with an attorney to confirm your specific situation.

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

Answer: Your spouse and unmarried minor children (under 21 years of age) are eligible for H-4 status by applying for a visa outside the U.S. or changing status within the U.S. See H-4 Family Resources

• If your H-1B has been approved, your spouse or child under 21 years of age can apply for an H-4 visa at a U.S. Embassy or Consulate. They can apply for the H-4 visa using the H-1B approval document from USCIS. A nonimmigrant visa application must be submitted. We recommend checking the specific embassy’s website where the visa interview will take place for detailed instructions. 
  • If there are outside the US, they can apply for H-4 visas stamps at the US Embassy.
• To change to or extend H-4 status while in the United States, the dependent’s status must remain in a valid status. You may request that ISEO submit the completed I-539 application (H-4 application) concurrently with the H-1B petition. Alternatively, you can submit the I-539 application independently with USCIS, either by paper or online, to request a change to or extension of H-4 status. Be sure to include a copy of the H-1B Receipt or Approval Notice with the H-4 application.
  • If they are inside the U.S. they can apply for change of status to H-4 by submitting a Form I-539 with USCIS.

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

• 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).