Office of International Student & Scholar Services

H-1B Frequently Asked Questions

Please be advised that the information below is not legal advice, nor should it be construed as legal advice in any manner. Consult an immigration attorney or your human resources or immigration office at your employer if you have immigration questions or concerns.

 

FAQs: New Employees FAQs: Current EmployeesOther FAQsUseful Websites

 

New University Employees

1. Is The University of Toledo (UToledo) subject to the H-1B numeral limitation of 65,000 (H-1B "cap")?
 No, UToledo is not subject to the annual H-1B "cap," based on being an institution of higher education. As a result, UToledo may file new H-1B visas year-round.

2. I was recently hired by UToledo, and my hiring department has agreed to sponsor me for an H-1B visa. I am currently employed in the U.S. with another employer and on the H-1B visa. Does UToledo's H-1B need to be approved before I commence employment there?

UToledo's H-1B need only be filed and pending, not approved, prior to commencing employment at UToledo. The conditions that must be met in order to take advantage of this "portability" provision can be found under Pub. L. 106-313 American Competitiveness in the Twenty-first Century Act of 2000 (§ 105 of AC 21).   

However, if you plan to travel abroad while employed by UToledo on the H-1B, the H-1B petition (I-129) must be approved in order to reenter the U.S., even if you have an unexpired visa with multiple entries in your foreign passport. To accelerate the H-1B petition, Premium Processing may have to be filed in order to have the H-1B adjudicated in 15 days. (Normal H-1B processing can take several months.)

3. I was recently hired by UToledo, and my hiring department has agreed to sponsor me for an H-1B visa. I am currently in the U.S. on a visa other than an H-1B (e.g. B-2, H-4, F-1, J-1, L-1, TN). Does UToledo's H-1B need to be approved before I commence employment there?

When an employer is filing a change of status from a non H-1B visa to an H-1B visa, the H-1B must be filed and approved before the H-1B employment begins. The requirement for approval is unlike the porting of an H-1B from Employer A to Employer B, wherein the H-1B need only be filed before commencing employment at Employer B.

4. I was recently hired by UToledo, and my hiring department has agreed to sponsor me for an H-1B visa. However, I previously held J-1 (or J-2 dependent) status and am subject to the two-year home residency rule (INA §212(e)). May I change status to H-1B with UToledo?

No, you may not change status to H-1B. The J-1 (or J-2) two-year home residency rule must either be satisfied by returning to your home country for two years or be waived by USCIS. For more information on obtaining a waiver, visit the following website: U.S. Department of State--Bureau of Consular Affairs.

5. I am an international student and eligible for OPT.  Can I get H-1B without utilizing my OPT?

It’s UToledo policy that, if students are eligible for OPT, they exhaust their OPT before they adjust status to H-1B.  Please work closely with your sponsoring department and international office to plan a timely H-1B filing.

 

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Current University Employees

1. I am a current UToledo employee but on a non H-1B work visa (i.e., OPT card). My hiring department is now willing to sponsor me for an H-1B visa. Does the H-1B need to be approved before I commence employment on the H-1B?

When an employer is filing a change of status from a non H-1B visa to an H-1B visa, the H-1B must be filed and approved before the employee may commence employment on the H-1B visa. This applies to both new employees and current employees. As a result, it is very important that the current employee and hiring department contact OISSS well in advance of the non H-1B work authorization expiration date as normal H-1B processing can take several months.

2. I am a current UToledo employee working on an approved H-1B visa. My hiring department has agreed to extend the H-1B. Must the subsequent H-1B be approved before the existing H-1B expires?

No, the subsequent (or newly-extended) H-1B need only be filed before the existing H-1B expires. So long as (1) the USCIS receives the Form I-129 petition to extend the employee’s status before the existing H-1B expiration, (2) the employee has not otherwise violated the terms of their status, and (3) the employee meets the basic H-1B eligibility requirements, then the employee may be lawfully employed with the same employer (UToledo) for up to 240 calendar days starting from the prior H-1B expiration date, or until USCIS makes a decision on the application, whichever comes first. If the H-1B is denied, or the 240 day mark arrives and there is no decision, then employment must cease immediately, and in the event of a denial, the employee would have to depart the U.S. immediately. 

Note: The I-129 petition for both new and extended H-1B visas can be filed at most 180 days (six months) prior to the effective start date of the H-1B employment. For H-1B extensions, it is recommended the I-129 be filed at least 30-45 days before the expiration date of the existing H-1B, so that an original USCIS Receipt Notice can be obtained in advance of the expiration date in case the Receipt Notice is needed for other important matters (e.g., renewing a driver’s license).

3. I am a current UToledo employee working on an approved H-1B visa. I recently entered the U.S. following international travel, and the electronic I-94 record end date corresponds to my current passport's expiration date. However, the I-94 card and passport end dates are much sooner than my approved H-1B expiration date. Which date do I need to follow?

The I-94 record, which can be downloaded from I-94 Website: Travel Records for U.S. Visitors, indicates your class of admission (i.e., H-1B) and “admit until” date, which is your status expiration date.  The I-94 “admit until” date is the controlling end date, as it relates to both your presence in the U.S. and employment at UToledo.  As a result, you must immediately have your passport renewed, and you must contact OISSS to make arrangements to have the I-129/H-1B extension filed before the I-94 card end date.  Individuals should retrieve their electronic I-94 Arrival/Departure record at the U.S. I-94 site.

It is for the above reason that your foreign passport must always be timely renewed as far in advance as possible and prior to your next U.S. entry. Otherwise, the result could be that UToledo’s H-1B is "short-ended" based on both the passport expiration date and the “admit until” date on the I-94 card.

4. What does H-1B "recapture" mean?

In general, the H-1B is valid up to six years, and at most in two separate three-year increments. During that time, a nonimmigrant may work for more than one employer on H-1B status.

However, USCIS has clarified that H-1B time will only accrue when the employee is on U.S. soil. Therefore, time spent outside the U.S. for vacation, visiting family, or attending a professional conference, will NOT be counted towards the six year H-1B "clock." Further, if your initial H-1B entry was delayed due to consulate processing, and you enter the U.S. after the H-1B approval date, that time spent outside the U.S. will not count towards H-1B time.

For this reason, it is important that an H-1B nonimmigrant, when traveling abroad for any reason while in H-1B status, retain evidence of both U.S. departure and entry. Examples of such evidence would be, but are not limited to, stamps on passport pages, copies of prior I-94 cards, U.S. visas within foreign passports, and airline itineraries.

5. How soon should I apply for the H-1B extension? 

If you are eligible to file for H-1B extension, the extension should be filed as early as possible.  Your sponsoring department can contact OISSS seven months before your H-1B expiration date.  Please note, it may take eight weeks to assemble and prepare the H-1B petition.  If a timely H-1B extension is submitted before your H-1B expiration date, you can continue to work for UToledo for 240 days beyond the H-1B expiration while the petition is pending. 

6. Does my approved H-1B with UToledo allow me to accept employment elsewhere in the U.S. or accept concurrent employment with UToledo?

No it does not. The H-1B for which UToledo received approval on your behalf is limited to the applicable Offer Letter or Employment Contract. This means that you cannot accept concurrent employment with UToledo or any other U.S. employer unless a concurrent H-1B or other visa is filed.  Remember that any work outside the scope of approved duties is not permissible and, if performed by the employee, means most likely the Beneficiary will be engaging in unlawful employment.

7. Do changes in my job duties and responsibilities, position requirements, or wages impact my H-1B status?  

Yes, any potential changes to your position may impact your H-1B status.  Therefore, it is very important that the sponsoring department and H-1B employee contact OISSS prior to any changes going into effect.  (These changes include changes in job duties and responsibilities, title, wages, worksite location, sponsoring department, full time to part time, or part time to full time, leave status, etc.)

8. Can I receive payment for honorarium or fees for consulting?

The H-1B employee may not receive a benefit, honorarium or other monetary gain for giving lectures or speeches at other conferences or institutions.  You can only work for UToledo and for the department that sponsored your H-1B status.  As an H-1B employee you “may” get reimbursed for travel and reasonable expenses if you have the opportunity to give lectures or speeches at other institutions or conferences but may not receive compensation for these activities.  Please contact OISSS if it is contemplated. 

9. While H-1B status with UToledo, can I work for another employer or a different department (other than my sponsoring department) with UToledo?

No, the H-1B is very specific to those duties stated in the original petition. If payment or benefit is received for services outside the approved job duties, this is most likely unlawful employment, which jeopardizes the validity of the employee’s H-1B status and which may affect future filings and/or ability to obtain a permanent residency card. The Department should be mindful to only provide employment that has been sanctioned by USCIS. The approval of an H-1B does not allow the employee to work any other job at UToledo or another employer.

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Other FAQs

1. What is the difference between H-1B visa and H-1B status?

The H-1B “status” is your nonimmigrant classification in the U.S.  The H-1B “visa” is a stamp in your passport placed by a U.S. embassy/consulate and provides you permission to travel to the U.S.  H-1B visitors, unless visa exempt, are required to obtain a valid H-1B visa stamp at a U.S. embassy or consulate abroad in order to enter the U.S. The visa will show an expiration date. If the visa expires while the employee is in the U.S., it may not be a problem as long as the I-94 is valid. However, it is important to have a valid visa when reentering the U.S. after leaving the country.  An H-1B entry visa can only be obtained at a U.S. embassy or consulate abroad. 

If you have changed status to H-1B in the United States without traveling abroad, you will need to apply for an H-1B visa before you return to the U.S. from traveling abroad. 

Please note, if you are eligible for automatic visa revalidation, a valid visa may not be necessary if you are returning to the U.S. from a brief visit to Canada or Mexico. For more information, go to U.S. Visas page.

2. What is the I-94 (Arrival-Departure Record)?

The I-94 (Arrival-Departure record) shows the employee’s nonimmigrant status, date and place of entry to the U.S., a unique I-94 admission number, and an “admit until” date. The “admit until” date on the I-94 typically matches the expiration date on the I-797 approval of the H-1B petition.  Please note, your “status” and expiration date on the I-94 record is the controlling end date.  Please make sure the status and “admit until” date on your I-94 do not expire.

3. Can my personal immigration attorney file my H-1B petition?

No, your personal attorney cannot represent The University of Toledo’s interest in immigration matters.  If necessary, UToledo works with outside counsel that is assigned by Ohio Attorney General’s office.

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Useful Websites

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Last Updated: 2/27/24