Most employers believe that the most difficult part of the H1-B Visa process is the H1-B Visa approval process. However, seasoned immigration attorneys realize that after the U.S. Citizenship and Immigration Services (“USCIS”) approves an employer’s H1-B Visa application, maintaining the valid H-1B Visa is arguably even more difficult.
This is where an experienced immigration attorney becomes a company’s invaluable asset. Employees and their employees must adhere to strict H1-B Visa guidelines that carefully define an H1-B employee’s place of employment, job duties, and hours of employment. A change or addition to any of those categories can potentially trigger a loss of status, or even subject the employer to liability.
Therefore, this article explores (1) possible situations where an employer must notify the USCIS of changes in a H-1B employee’s duties, (2) whether a new or amended H-1B petition must be filed, and (3) how an employer can properly terminate an H-1B employee to avoid liability.
1. Material Changes – When must an Employer File a New or Amended H1-B Petition
The USCIS requires employers to notify the USCIS of “material changes” in an H1-B holder’s employment. Though a material change is sometimes defined as a substantial alteration of terms or conditions, it is best to take a case-by-case analysis of whether the USCIS must be notified. Some examples that constitute a material change include:
Place of Employment:
Typically, an H-1B employee must work at the location that is listed in his or hers Labor Condition Application (“LCA”). If an employer wants an employee to work at a location other than the one mentioned on the LCA, the employer must notify the USCIS and file a new LCA before the employee begins work at the new location. Otherwise, the court may decide that the employee worked without proper authorization. Note that an employer does not have to notify the USCIS if the new workplace is “within the area of intended employment” listed on the LCA, or if the employee’s job duties require constant travel – i.e. a circus employee.
Since an H-1B employee is employed in a “specialty occupation”, an employer must notify the USCIS of any changes in an H-1B employee’s duties that alter or change the specialty occupation. The USCIS will determine if there is a material change in the employee’s specialty occupation by considering such factors as new duties and whether these changes place the employee in a different prevailing wage category.
Hours of Employment
Generally the employer does not have to contact the USCIS of a change in an H-1B employee’s hours unless it falls below full-time employment (usually at least 35 hours a week). An employer does have an option of temporarily laying off an employee, but the employer still must pay the employee the prevailing wage. Otherwise, the employer may be civilly liable.
Once an employee is granted H-1B status, the employee can work for a new employer (besides the initial sponsor) provided that the new employer immediately notifies the USCIS and files a new LCA before the employee joins the new company.
2. Should I File a New or Amended H-1B Petition?
A new employer should file a new H-1B and LCA before the employee joins the new employer. Though the USCIS has not expressly stated any timelines about amended H-1B petitions, it would be prudent for the employer to file before any material change occurs to avoid possible liability or immigration problems.
However, not all changes in employment conditions must be reported to the USCIS. These include:
Name of the Employer
There is no need to immediately notify the USCIS if the sponsoring employer has merely changed their name, as long as the employee’s job duties remain unchanged. The employer can simply notify the USCIS when they file for the employee’s H-1B extension.
Changes in Wages
An employer does not have to notify the USCIS of a change in an employee’s wages unless it falls below the required prevailing wages.
Corporate Restructuring – The “Successor-in-Interest” Doctrine
In today’s business world, mergers, acquisitions, or consolidations have become quite common. An employer is not required to notify the USCIS of such an occurrence provided (1) the employee’s duties remain unchanged and (2) the new corporate entity that resulted from the merger agrees to take on all immigration related obligations and liabilities. This is known as the “successor-in-interest” doctrine.
Note that though the new corporate entity does not have to file a new H-1B petition, the new employer must meet the following requirements before the corporate change: (1) the new employer must keep a record of which H-1B employees transferred to the new employer, and (2) the new employer must update its public access files – this includes (a) each affected LCA number, (b) how the new employer’s wage system complies with the H-1B requirements, (c) the new employer’s identification number, and (d) a sworn statement by an authorized official from the new company agreeing to assume all immigration obligations and liabilities.
3. Termination of Employees – Protecting Employers from Liability
Because an employer has to notify the USCIS of any material changes in an H-1B employee’s duties, this naturally includes situations where the employer fires or lays off an employee before the H-1b expires. An employer is not discharged from the employer’s obligations or duties (included paying wages) by merely terminating the employee; a “bona fide termination” must occur. A bona fide termination requires (1) formal notice to the USCIS that the employee was fired, (2) that the employer offer to pay the terminated employee’s “reasonable costs” of returning home.
Note that the termination is effective as soon as the USCIS receives notice, not necessarily the date the USCIS revokes the employee’s H-1B Visa. Also, though an employer must offer to help pay for the employee’s return trip home, there is no requirement that the employer also pay for the costs of relocating the H-1B holder’s family or property. Once a bona fide termination occurs, the H-1B employee is in unlawful status and therefore advised to return to his or her home country. If a company has any questions about whether they complied with this requirement, they should consult their attorney or our office on 800 540 7125.
As detailed above, once an employer’s H-1B petitions are approved, it must be carefully monitored to comply with USCIS requirements. A company’s attorney can alert the company of when USCIS notification is needed by consulting (1) immigration statutes, (2) Department of Labor (DOL) regulations, (3) case law, and (4) advisory memoranda. Because of the complications that may arise, it is best for a company to err on the side of caution and immediately notify their attorney if they think that a change may be material.
Shah Peerally Law Group PC has successfully handled numerous H1B cases including transfers. We will be glad to assist you with all your immigration needs.
The Shah Peerally Law Group PC deals in US immigration law . The law firm is headquartered on 37600 Central Ct, Suite 201, Newark CA 94560. Ph 510 742 5887, email: [email protected] Website: www.peerallylaw.com
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