The H-1B visa is one of the most sought after work visas in the country. Employees sponsored to work in the U.S. on an H-1B work visa are allowed to work in the U.S. for a maximum of six years, but the term can be extended under certain circumstances. Because of stringent quota limits, however, the H-1B visa can sometimes be difficult to obtain and there are strict eligibility requirements that must be met, namely the following:
- The applicant’s job position must require a bachelor’s or higher degree;
- The applicant must possess at least a bachelor’s degree or its U.S. equivalent, or a combination of education and experience equivalent to a U.S. bachelor’s or higher degree; and
- The wage offered to the applicant must be at least the prevailing wage, or the actual wage paid to other professionals similarly employed, whichever is higher.
Questions about H-1B visa status often arise when a foreign national employee changes job location. Because the H-1B visa is employer-specific, if the visa holder changes jobs to a new employer, he or she must obtain approval for the new employer to sponsor his or her H-1B visa.
If, on the other hand, the employee is relocated to a different job site, but continues to work with the same employer, an amended H-1B petition may need to be filed with United States Citizenship and Immigration Services (USCIS) in certain situations. If the new job site is located in the same area as the intended employment, the employer will likely not need to file an amended petition. The employer will still need to comply with certain notice requirements within the company, however.
Conversely, if the employee is relocated to a job site that is outside of the intended area of employment, a new prevailing wage must be obtained, a new labor condition application must be certified, and an amended petition must be submitted to the USCIS.
There are exceptions to this general rule, however. For instance, if an H-1B foreign national employee attends training or a conference in a different location, a new labor condition application is likely not required. Similarly, computer programmers who are engaged in short-term projects at different locations may not need to file a new labor condition application.
It is very important that employers pay close attention to job transfers of H-1B visa holders and comply with applicable requirements since non-compliance could result in possible deportation.
Because of the complexities and potential penalties involved with job relocations of H-1B visa holders, it is highly recommended that employers consult with an immigration lawyer if they are considering an intra-company transfer of an H-1B visa worker.
The Chicago immigration attorneys at the Shapiro Law Group are dedicated to helping businesses with all of their immigration needs. Whether your business currently employs foreign nationals or you are considering hiring foreign nationals, we will advise you of the various work visa options available and guide you through the entire application process. Contact our office at (847) 564-0712 to speak with our employment immigration lawyer.