H1B is a versatile visa that is one of the most common pathways for skilled workers to gain the right to temporarily live and work in the United States. Simultaneously H1B is a highly regulated visa category that imposes a number of compliance requirements to the employer. This includes the obligation to pay wages greater than the prevailing wage, to apply and obtain a Labor Condition Application (LCA), to make specific announcements and maintain required records for a designated period of time.
Another important obligation for the petitioning employer for an H1B visa or status is to update USCIS of any “material changes” to the terms and conditions of the H1B visa holder’s employment.
An amended H1B petition should be filed, along with a new LCA, when:
- The location of employment has changed, such that it is outside the area of employment specified on the Labor Condition Application (LCA).
- There is a change of job duties from one specialty occupation to another.
- Other “material changes” have occurred in the terms and conditions of employment.
Changing from full-time to part-time, or vice versa, likely falls under the definition of a “material change” in the terms and conditions of employment. In such a case, the recommended approach is to apply for a new LCA with the proper designation (full-time or part-time), and file an amended H1B petition based on the new LCA.
It is also worth noting that full-time employees are generally defined as those who work 40 hours a week or more, or 35 hours or more if consistent with the employer’s regular course of business. Part-time employees are defined as those who work less than 35 hours per week.
It is highly recommended for employers and employees to timely consult with immigration counsel in advance of instituting any changes in the employee’s terms and conditions of their job, to avoid serious risks of liability in being found non-compliant. The stakes are high considering that USCIS even has the option to revoke an already-approved H1B status if the USCIS finds that the employer in violation of any of these regulatory requirements, including the affirmative duty to update the USCIS with any material changes in employment.
Related posts:
Multiple Employers on an H1B: https://legalservicesincorporated.com/immigration/can-i-have-multiple-employers-while-on-an-h-1b-visa/
FAQs about the H1B Visa: https://legalservicesincorporated.com/immigration/frequently-asked-questions-about-the-h1b-visa/
Can an H1B worker go on leave: https://legalservicesincorporated.com/immigration/what-is-the-impact-on-an-h-1b-petition-if-an-employee-takes-paid-or-unpaid-leave/
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