The H-1B is a non-immigrant visa, under the Immigration and Nationality Act, section 101(a)(15)(H), that allows United States employers (petitioners) to temporarily employ non-US workers (beneficiaries) in specialty occupations. The regulations define a "specialty occupation" as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor including but not limited to biotechnology, chemistry, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts. It requires the attainment of a US bachelor's degree or its equivalent, as a minimum, in a field of study, directly related to the proffered employment.
H-1B sponsorship requires the establishment of an employer-employee relationship per 8 CFR 214.2(h)(4)(ii). Given this, H-1B visa holders must be paid by NYU; external sources of funding, such as fellowships, may not meet this requirement.
The H-1B Petition
The employer must file a petition accompanied by requisite filing fees with the US Citizenship and Immigration Services (USCIS). Among other documentation, the petition includes a Labor Condition Application (LCA) certified by the US Department of Labor (DOL) attesting to the payment of at least the prevailing wage. The H-1B visa status allows for dual intent, specifically making it permissible for H-1B visa holders to file for an immigrant visa, also known as Legal Permanent Residence or the “green card." NYU generally sponsors tenured and tenure-track faculty for employment-based permanent residency. NYU scholars also usually maintain H-1B visa status during the pendency of their permanent residency filing.
H-1B petitions may be filed via premium processing. Premium processing grants an adjudication in 15 calendar days unless USCIS issues a request for evidence (RFE). If an RFE is issued, the case review “clock" stops and once the additional evidence is submitted, it re-starts again from the beginning. If neither an adjudication nor an RFE is received within 15 calendar days, USCIS is required to refund the filing fee. Premium processing may be requested at the time of filing or after the case is already pending.
Individuals currently employed in H-1B visa status who have been offered employment with NYU, have the benefit of portability. Per American Competitiveness in the 21st Century Act (or AC21) regulations, individuals are eligible to commence employment with NYU as early as the date the petition is filed and received by USCIS. Individuals may travel and re-enter the US and begin working for NYU even if their H-1B petition requesting a transfer to NYU is pending as long as they have a valid H-1B visa and evidence of a timely filed H-1B petition. H-1B visas issued for one employer may be used for entry to the US to work for another employer.
PLEASE NOTE: Individuals who have held J-1 visa status and are subject to the two-year home residency requirement INA 212(e) and have neither fulfilled the requirement nor received a waiver, cannot obtain or change to H, K, L, or Legal Permanent Residence status within the US.