Changes in Employment May Require Employers to Amend H-1B Application With USCIS

The H-1B visa program is reserved for professional employees coming to work temporarily in the U.S. in a specialty occupation. U.S. employers who employ foreign workers under the H-1B visa program are required to amend the H-1B petition with the United States Citizenship and Immigration Service (USCIS) if there are substantial changes to the terms of employment that may affect the eligibility of the foreign worker to remain in the U.S. under that visa program.  Before filing an H-1B visa application, a U.S. employer is required, among other things, to file a Labor Condition Application (LCA) with the U.S. Department of Labor attesting to the terms of employment for the foreign worker such as (but not limited to): the specific occupation, job title, level of experience, salary or wages, work hours, period of intended employment and place of intended employment.

A change in the terms of employment may take place when the employee is assigned to work in a different location outside the metropolitan area which was initially disclosed in the LCA and certified by the US Department of Labor.Another substantial change in the terms of employment is when the employer changes the employee’s duties from one occupation to another or if there is a substantial change in salary or work hours per week that materially changes the terms and conditions of employment from what was originally filed in the LCA and with the H-1B petition.

There is no bright line as to what constitutes a substantial change in the terms of employment. Therefore, it is recommended that once the employer is aware of any modification to the terms of employment of an employee with H-1B status, that was not originally attested in the LCA or the petition, to consult an attorney. As a general rule, the law requires the employer to file a new LCA and an amended petition before the changes to the terms of employment take place.

 Nathalie Gottschalk is an immigration attorney concentrating in the areas of corporate immigration law including non-immigrant visas, employment-based corporate immigration and family-based immigration. She can be contacted at 9550 S Eastern Avenue, Suite 253, Las Vegas, Nevada 89123; or at 702-308-6805.

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