H-1B Status Change: How to Stay Compliant

June 14, 2017 Britni Sehgal

 

The H-1B visa is job-specific, which means whenever there is a significant change for a sponsored employee – including a change of worksite location, salary, title or duties – an amended H-1B petition might be required. Failure to file an amended petition could result in the employee’s visa being revoked and acceptance of future H-1B petitions filed by the company may be at risk, proving the importance of staying on top of any H-1B status change for your sponsored employees.

H-1B Status Change: Transfer

If an H-1B visa holder is terminated or resigns and is offered a position at another company, an H-1B transfer requires the new employer to apply for a new H-1B visa. This application is not subject to the annual cap and can happen anytime throughout the year.

Change of location

According to USCIS, any time there is a “material change” in the terms and conditions laid out in the original visa petition, an amended file or new petition must be filed with the corresponding Labor Condition Application (LCA). The LCA should certify a few features of the new location for the employee, including the corresponding prevailing wage for that geographic location.

An amended petition must be filed if a sponsored employee is moving to a new worksite that’s out of the metropolitan statistical area (MSA) or “area of intended employment.” If the employee is moving to a location within the MSA, no amended petition is required, nor is a new LCA. The same goes for certain cases of short-term location changes under 30 days – no amended petition is required. However, we recommend that you always check with your legal counsel when there are any changes to an employee’s status.

Change of title

A new job title or additional duties could require an amended petition as it is classified as an H-1B status change. Though USCIS requires material changes to have such an amended petition, the organization doesn’t necessarily specify what that means. That makes it important to consult with your immigration attorney if you have questions on a particular case.

Change of salary

Salary changes for an H-1B visa holder and their petition implications are dependent on location. The employee must be paid at least the prevailing wage in the geographic location for the initial LCA corresponding with the initial visa petition. If an employee is not moving locations, the employer is not permitted to decrease the salary of that employee. If he or she is moving a new location that’s outside the geographic area designated in the initial petition’s LCA, and the prevailing wage is lower than it is in the current location, salaries can decrease if they are accompanied by a new LCA for that location and an amended H-1B petition.

For more on how to maintain immigration compliance for your organization, watch our on-demand webinar.

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