unpaid leave, or reduce their hours or wages in order to avoid having to terminate the employee outright—all of those options violate the certifications the employer made to DOL and USCIS, potentially subjecting the employer to claims for back wages. An employer should always consult their legal counsel before reducing an H-1B employee’s hours or wages.
Immigration Matters H-1B - infinity and Beyond: Compliance, Extensions, and Permanent Sponsorship By Lakshmi Challa Securing approval of an H-1B petition is not the end of the journey for either employer or employee. There are a number of matters, both expected and unexpected, which can affect the validity of an employee’s H-1B. This article is a look at the most common issues that crop up in an H-1B employment scenario. As always, this article should be considered a summary and is not a replacement for competent legal advice. Compliance Ongoing compliance with both U.S. Department of Labor and U.S. Citizenship and Immigration Services regulations is absolutely necessary when employing an H-1B nonimmigrant employee. While compliance is often passive—maintaining copies of documents and the public access file—changes in employment will require the employer to take some action. Ongoing compliance is important because an employer is subject to audit by both DOL and USCIS when it sponsors an H-1B employee. Changes in wage rate, changes in employment location, and employee termination are three of the most common scenarios which require action by the employer. Change in Wage Rate: A change in the employee’s wage rate should always be noted in the Public Access File, along with a reason for the change. Annual salary increases with no change in job title or duties will not require any additional action beyond updating the Public Access File. Reductions in the employee’s wage rate, promotions with changes in job title or duties, or changes from full-time to part-time hours will all trigger additional compliance actions. Employers should always contact their immigration counsel before taking such actions, in order to ensure that all relevant compliance actions are taken. Changes in Job Location: A change in the employee’s job location can trigger the need to file a new LCA with the DOL as well as an amended H-1B petition with USCIS. While there are exceptions for certain temporary or local transfers, employers should always contact their immigration counsel before transferring an H-1B employee to a new worksite. Improperly documented transfers can cause serious complications during otherwise-routine federal audits. Employee Termination: Sometimes, an employer needs to terminate an H-1B employee prior to the expiration of the employee’s work authorization. If this happens, the employer should follow the company’s internal HR policy regarding terminations. The employer should also be aware that terminating an H-1B employee prior to the expiration of their work authorization requires that the employer offer the employee the cost of return airfare to their last place of residence abroad. Employers are also required to notify USCIS in writing within ten days of the termination. Sometimes, an employer wants to “bench” an H-1B employee, place them on Saathee.com
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Extensions An employee’s first H-1B is usually granted for a period of three years. USCIS can and will grant approvals for periods of less than three years, so it is always important for employers to review the expiration date of the H-1B carefully. Employees are eligible for a maximum of six years in H-1B status, so employers will need to plan ahead for the filing of an H-1B extension application. Extension applications can be filed up to six months’ prior to the expiration of the employee’s current H-1B status, and will require documentation similar to what was included in the initial petition. Permanent Sponsorship Since foreign nationals can only work in the U.S. in H-1B status for a maximum of six years, employers must plan ahead to fill the opening that will be created when the H-1B employee departs the U.S. Many employers will want to take advantage of permanent sponsorship—sponsoring their H-1B employee for a “green card” in the U.S., so that the employee can continue to fill their current position with the employer. What is commonly known as a “green card” is more accurately termed legal permanent residence. A “green card” holder is permitted to live and work in the U.S. permanently and, after a period of time, to apply to become a U.S. citizen. The process of sponsoring an employee permanently is more complex, but involves the same basic steps as the H-1B process. The employer must get permission from both the DOL and USCIS in order to sponsor the employee for permanent residence. Due to the increased complexity of the process, employers should explore the option of permanent sponsorship when an employee is in their fourth or beginning their fifth year of H-1B status. Doing so will allow sufficient time for an orderly application process. Contact Lakshmi Challa at info@challalaw.com
uSCiS Changes international District Names Effective April 10, 2014, all USCIS offices will begin using new district names in all references to the international districts. The new names are as follows: Asia/Pacific (APAC) District, formerly the Bangkok District Europe, Middle East and Africa (EMEA) District, formerly the Rome District Latin America, Canada and the Caribbean (LACC) District, formerly the Mexico City District USCIS has implemented this change to ensure that the district names more descriptively convey the jurisdictions the districts cover. The APAC, EMEA and LACC District Offices will remain in their current locations of Bangkok, Rome and Mexico City, respectively.
May 2014