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DIS Title Divider Visiting Scientists Title Divider H-1B Overview
​​​​Visiting Scientists
H-1B Overview

The H-1B visa category is a temporary work visa for foreign national employees. It requires the employee to work in a “specialty occupation.” A specialty occupation is one that requires the theoretical and practical application of highly specialized knowledge and the attainment of a bachelor's or higher degree in the specific specialty field or its equivalent.

To obtain H-1B status for an employee, the employer must meet certain wage requirements and document both the duties and responsibilities of the position to be filled and the applicant’s qualifications to fill the position.

Eligibility

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All FTE (Full-Time Equivalent) designations are eligible for H-1B sponsorship by NIH. Non-FTE designations are ineligible for H-1B sponsorship by NIH.

However, some individuals in non-FTE designations (e.g., Guest Researchers or Collaborators) may be sponsored in H-1B status by an outside employer and authorized for placement at NIH. Refer to our page on Selecting a NIH Designation for additional information.

H-1B Duration

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H-1B status may be obtained for an initial period of up to three years. It may be extended for up to a maximum of six years. Extensions beyond six years are permitted in limited situations.

Dependents

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The spouse and unmarried children (under age 21) of the H-1B employee are eligible for H-4 dependent status. Refer to our guidance on FTE Dependents

Dependent Work Authorization

Dependent family members in H-4 status may study, but they are unauthorized to work unless they have an Employment Authorization Document (EAD). H-4 dependents are only eligible for an EAD in limited circumstances.

NIH H-1B Sponsorship Request Process

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Review our visual overview of the H-1B Process. See also our Non-FTE to FTE Designation Conversion page, if applicable.

To request H-1B sponsorship of a prospective or current NIH FTE employee, Institute/Center administrative staff must submit a case to DIS. We encourage case submission to DIS at least 6 months before the target start date for all cases, and 8 – 12 months in advance for individuals requiring J-1 waivers. DIS will submit the H-1B petition to U.S. Citizenship and Immigration Services (USCIS) for processing.

H-1B Cap

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Congress sets an annual limit or “cap” on the number of new H-1B workers in the United States each year. However, as a government research organization, NIH is not subject to this annual cap and is not limited to only filing H-1B petitions during “cap season.”

NIH employees in H-1B status who change employers from NIH to the private sector may become subject to the cap. Consult your prospective employer for additional guidance.

Obtaining H-1B Status

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Inside the U.S.

For individuals already in the U.S. in another immigration status, USCIS must first approve a change of status to H-1B. To change status within the U.S., the individual must be maintaining their current non-immigrant status. Scientists currently at NIH in a non-FTE position should refer to our Non-FTE to FTE Designation Conversion guidance.


Outside the U.S.

Individuals outside the U.S. may apply for H-1B/H-4 visas at a U.S. Consulate abroad after USCIS has approved an H-1B petition. The employee and accompanying family members will obtain the H-1B/H-4 visas in their passport and enter the U.S. in H-1B/H-4 status. To schedule a visa appointment and obtain application information, contact the appropriate U.S. Embassy or Consulate. Refer to our Getting Your Visa guidance for additional information Foreign nationals who are exempt from the visa requirement may enter the United States directly in H-1B status on the basis of the H-1B petition approval notice.

Extending H-1B Status

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H-1B Temporary Workers are eligible for an initial period of up to three years and extensions of up to three years, for a total of six years of H-1B status. The six years begin when the employee obtains H-1B status within the U.S. Extensions beyond six years are permitted in limited situations - contact DIS early if an employee intends to remain at NIH beyond their 6th year in H-1B status.

To request an H-1B status extension:

    1. The Institute/Center (IC) submits a renewal case to DIS on behalf of the NIH FTE employee reflecting the requested duration of extension. All items on the DIS renewal case checklist are required (even those previously submitted to DIS for a prior H-1B petition).

    2. After DIS receives the renewal case, it is assigned to an Immigration Specialist (IS). The IS prepares the H-1B petition and provides specific guidance to the employee regarding additional documentation, filing fees, international travel, dependent family members, and related issues.

    3. DIS must submit a complete H-1B petition to USCIS for each extension request. DIS processing time is 45 business days, from the receipt of a complete renewal case to submission to USCIS. USCIS processing time is not included in these 45 days and varies widely. For current USCIS processing times, refer to the USCIS website (Form I-129, California Service Center). 

 Timing considerations:       

  • Discuss renewals within the IC approximately eight months before the current H-1B status end date. This allows sufficient time for DIS and USCIS processing.
  • Early renewal case submission to DIS is important - DIS must submit extensions before the status expiration date listed on the most recent I-94 record.
  • Ideally, extension cases should be submitted to DIS about six months before the current employment end date, as DIS can submit extensions to USCIS as early as six months before the current status expires.

An employee in H-1B status may continue to work at NIH for an additional 240 days beyond the expiration of their current status, provided DIS files a timely H-1B extension petition with USCIS on their behalf. For additional information, refer to our guidance on the 240-Day Rule.


Additional Considerations

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Dual Intent

H-1B status benefits from the concept of "dual intent,” meaning that anyone applying for an H-1B visa at a U.S. Consulate is not required to prove intent to return to their home country. Most other non-immigrant visa classifications do not benefit from dual intent. H-1B holders may seek a change of status to any other non-immigrant or immigrant status for which they are eligible. H-1B status does not make one subject to the 212(e) Requirement.

Pay and Taxes

As FTE employees, H-1B workers sponsored by NIH will earn a salary. USCIS requires extensive wage documentation for H-1B petitions. H-1B workers must be paid the higher of the “actual wage” and the “prevailing wage”. The actual wage is the wage rate paid by the employer to all other individuals with experience and qualifications similar to those of the H-1B nonimmigrant for the specific employment in question. The prevailing wage rate is the average wage paid to similarly employed workers in a specific occupation in the area of intended employment.

H-1B employees will owe U.S. income taxes on any income received during the period of employment. Income taxes are assessed at both a state and a federal level. The United States has Income Tax agrements or treaties with several nations that may exempt some individuals from certain types of U.S. tax. FTE employeesIndividuals in H-1B status are also subject to Social Security taxes from the date they start working. See our Taxes webpage for more detailed information.

Status vs. Visa

The terms “visa” and “status” are often used interchangeably, but they are actually distinct. A “visa” is the foil sticker issued by a U.S. Embassy or Consulate and placed in a passport; it is necessary for entering the U.S. “Status” refers to one’s official immigration classification in the U.S. as indicated on the I-94 record. The I-94 record may be issued by U.S. Customs and Border Protection (CBP) at a port of entry or may be affixed to an I-797 approval notice from USCIS. It is possible to have multiple visas in one’s passport, but an individual can only have one immigration status while in the U.S.

It is important to understand the difference between visa expiration date and status expiration. One’s visa may expire while remaining in the country, but one’s status should not. A visa must be valid at the time a traveler seeks admission to the United States, but the expiration date of the visa has no relation to the length of time a temporary visitor may be authorized to remain in the United States. Refer to the Department of State What the Visa Expiration Date Means page for additional guidance. Conversely, status expiration governs the length of time a foreign national is permitted to remain in the United States.

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Revised 07​/2021




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