Last Updated on March 2, 2023
When it comes to employee status changes, there are a few immigration-related topics you could be referring to.
First, this could be a small change in your existing employee’s position, responsibility or work location. Or, you could be talking about a more dramatic change from one visa classification to another or an extension of stay. Finally, an adjustment of status is a term applied to green card applicants who transition from nonimmigrant visas to permanent residency status.
All these status changes could bring about compliance issues if you’re not prepared.
Status changes between visa categories
Largely, foreign nationals admitted to work in the United States under one visa category are permitted to switch visas, pending a newly filed petition and its acceptance. As long as the employee is not in C, D, K, S, or J status, the process for filing a new petition should be very similar to filing for a non-immigrant visa for someone not already in the United States.
Status changes at work
Most employment visas are employer-based, which means a foreign national can’t change employers without filing a new petition. And, when an existing employee holding a visa has a change in status – anything from a change in title, salary, responsibilities or work site – you’re generally required to notify USCIS.
In order to stay compliant, whenever there are status changes for foreign national employees, it’s important to update documentation to reflect the change(s) and report it, if required. Keeping documentation up to date allows you and your employee to stay above the compliance threshold should USCIS decide to conduct an audit.
H-1B visa status changes
Staying compliant when there are changes in status for an H-1B employee is essential, especially in a time when the H-1B visa is under the federal microscope. A transfer to a new company requires a completely new H-1B petition; therefore, there is no such thing as an H-1B transfer, since every new sponsor must submit a new petition. If there is a small internal status change, like a change in job responsibility or title, you are likely required to submit an amendment, but you should consult with your attorney to make sure the change requires one.
For changes that are more substantial – a change in work location or salary – you’ll often have to submit a new H-1B petition along with a new Labor Condition Application (LCA). That, however, depends on the location of the new worksite and the duration of the employee’s term at that new worksite. As always, it’s essential that you consult legal counsel before making any determinations, or you may risk being out of compliance without even knowing it.
Green card status changes now require an interview
You should be careful not to confuse non-immigrant visa status changes with status changes for permanent residency in the U.S. In-person interviews are now required for those employees adjusting their green card status, according to an announcement USCIS made back in September.
For green cards obtained through a family-based process (like, marriage to a U.S. citizen, for example), this is more common. However, it’s a new requirement that could come as a challenge to employers and employees who aren’t used to the change in process. It’s important that an employee’s documentation be reviewed before the interview to make sure there are no errors or issues that could put you out of compliance.
