Employers play an important role in the H1-B visa process. The employer must offer a job to the employee as part of the application process. There are numerous scenarios where the employer will be required to file an amendment to the H1-B application. This could arise from changes in job assignments or transfer to a new job location.
In this article, we discuss the requirements for the H1-B visa and the situations that requirement amendment.
What are the H1-B Visa Requirements?
The H1-B visa allows an employer to sponsor foreigner professional workers with a special expertise to work for a specified period of time in the United States. The worker must have a bachelor’s degree or the equivalent work experience. The visa allows the holder to stay and working the United States for up to 3 years. The visa can be renewed for up to 6 years. Also, it is dual intent — meaning that the employee can seek permanent residency status under other visas while in the United States on an H1B visa. This includes applying for permanent residency for the spouse and dependent family members.
The employer must petition for the employee within 6 months of the start date. There are a total of 85,000 H1-B visas granted each year. 20,000 of them are reserved for individuals with masters degrees. The visa applications are processed on a first-come, first-serve basis.
The most difficult aspect about the H1-B is the requirement that the employer file a Labor Condition Application (LCA) with the US Department of Labor. The LCA attests that hiring the H1-B foreign employee will not adversely affect US citizen workers. More specifically, the applicant must state the following:
- The job pays the prevailing wage in the industry (or higher);
- The job entails the same benefits as other employees;
- The hiring will not negatively affect the working conditions of present employees; and
There is no labor dispute or work stoppage going on at the time
Once the H1-B visa is approved, the foreigner can begin living and working in the United States as a non-immigrant. The visa allows the employee to:
- Purchase real estate,
- Invest in companies or money funds,
- Be members of employment organizations, and
- Become inactive or unemployed if the employee is actively applying for a green card.
It also allows the employee to travel domestically and internationally without prior approval through an Advance Parole or and Employment Authorization Document.
Once the foreigner receives H1-B approval, there cannot be a “material change” in the conditions of employment. This includes relation to a different place of employment or a new job site that is not within commuting distance. Making such a move would require a new H1-B petition or an amendment to the existing petition.
What is an H1-B Visa Amendment
As discussed, the employer must file a new H1-B petition if the place or employment or worksite changes. In this scenario, the distance of the new location matters. If the distance is farther than a reasonable commute or outside of the metropolitan statistical areas (MSA), then an amendment is required. It is allowed to temporarily place the employee in a new location for up to 30 or 60 days (so long as the permanent site of employment does not change). There is also an exception for travel to non-worksites and jobs that regularly require travel to temporary locations (such as consulting).
Note, if the Amended H1-B visa is denied, the employee can return to the original place of employment under the original visa.
What is an H1-B Visa Transfer?
The H1-B Amendment should not be confused with an H1-B transfer. A transfer is when a new employer files an H1-B application for the employee. It does not involved the prior employer (and the employer may not be aware of the application). A transfer must take place if the employee wishes to change employers. The H-1B visa holder must meet the following qualifications to be eligible for a transfer:
Already on an H1-B visa and lawfully in the US;
The new employer’s petition must be genuine; and
The holder cannot be employed without authorization.
The new employer must include the following documents in the petition:
Most recent 3 pay stubs
Existing H-1B visa
Visa holder’s passport
Employee I-94 records
A copy of an updated resume
Proof of the employee’s academic degrees
Social Security Card (if applicable)
The employee can begin working for the new employer once the petition is filed.
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Navigating the array of immigration laws is a difficult undertaking. It is not advisable to undertake the visa application process without the assistance of an immigration attorney. The legal professionals at LawTrades are experts in all matters of immigration law.