H-1B Employer Obligations Continue Even After Petition Approval H-1B Employer Obligations Continue Even After Petition Approval

H-1B Employer Obligations Continue Even After Petition Approval

Over the next six months, approximately 200,000 foreign national professionals and their U.S. employers will learn whether they have secured initial H-1B visa status—the most widely—utilized (and often most coveted) work visa option for foreign professionals in the U.S. Because the visa category is subject to an annual quota, a lottery has historically determined how the limited number of visas are distributed. (For more information, see our article, "Calling All H-1B Cap Petitions.") While lucky individuals and employers will be pleased and relieved upon news of H-1B approval, employers must remember they still have continuing obligations related to H-1B status, and a failure to comply could have significant implications for both the H-1B worker and the company.
 
Not only is H-1B visa status the most utilized work visa option, but it is also the most regulated. Two agencies—U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of Labor—have separate H-1B regulations, with several strict requirements affecting filing, approval, and maintenance of status. Many of the requirements must be addressed prior to filing an H-1B petition, including committing to a minimum prevailing wage, posting notices at the intended location(s) of employment, and creating a Public Inspection File. Other requirements, however, are not triggered until after filing, but they are equally mandatory.
 
H-1B can be approved for up to three (3) years at a time, and many things can happen during that period, including promotions and worksite changes. Employers must remember that these types of changes come with unique reporting obligations when they affect an H-1B worker. H-1B visa status, in addition to being employer-specific, is also specific to the individual’s position and worksite. With very limited exceptions, an H-1B worker is generally only permitted to work in the position and at the location(s) disclosed as part of the H-1B petition that was filed and approved on his or her behalf. Therefore, when an employer wishes to change an individual’s job or work location(s), even if only temporarily, an amended H-1B petition filing may be required before the change occurs. 
 
Employers contemplating such changes should discuss them with immigration counsel to ensure any required filings are submitted timely. USCIS conducts unannounced site visits to ensure H-1B workers are performing the stated job duties and are physically located at the address(es) listed in the H-1B petition, and penalties can be assessed against employers who fail to comply with the H-1B requirements. Additionally, H-1B workers for whom timely amendments are not filed may fail to properly maintain their status, which can affect their eligibility for future immigration benefits. For additional information on H-1B site visits, see our article, “Do You Know Where Your H-1B Employees Are?”
 
To discuss H-1B requirements or other immigration matters, please contact Christl P. Glier, Jenifer M. Brown, Kristin E. Kelley, or any member of Ice Miller's Immigration Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances. 
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