Employers can petition for foreign workers to work in the United States for temporary periods of time. There is a whole alphabet soup of work visas. H-1B, L-1A, and L-1B are the most common nonimmigrant work visas, but there are others (E-1, E-2, E-3, H-1B1, H-2B, O-1, O-2, O-3, P-1, R-1, and TN are also relatively common). Each visa category has its own special requirements and rules to follow.
However, all nonimmigrant work visas have one common requirement: You have to notify United States Citizenship and Immigration Services (USCIS) if there is a material change in the terms of employment.
What is a material change in the terms of employment?
There is no exclusive list of what is a material change in the terms of employment. Typically, the following are material changes which require the filing of an amended nonimmigrant work visa petition.
- A change in worksite locale, especially to a worksite in a different city or town.
- A substantial change in job title, duties, or salary. This may include a promotion or increase in responsibilities. Normally, a raise or bonus will not require an amended petition.
- A decrease in hours or in salary.
- A change in the position from full-time to part-time or a termination of employment.
- A change in the employer’s business structure, through a merger, acquisition, or change in Federal Employer Identification Number.
Not every change in the terms of employment requires an amended petition. The best advice is to consult with an immigration attorney as soon as possible so the attorney can evaluate whether an amended petition is required.
Who is responsible to file an amended petition with USCIS?
The petitioning employer is responsible to file an amended petition.
When should an amended petition be filed with USCIS?
The employer should file an amended petition with USCIS as soon as possible. Ideally, a material change in employment should be approved before it happens. As a practical matter, USCIS will consider a petition to be timely filed if any delay in the filing is reasonable given the circumstances. The critical point is to contact an immigration attorney upon learning of the proposed change. Some cases require additional filings with the Department of Labor and others may require updated advisory opinions from industry groups before a petition can be filed with USCIS.
What are the consequences of not filing an amended petition with USCIS?
Both the employer and the employee face consequences when an amended petition is not filed with USCIS.
For an employee, the most dire impact of not filing an amended petition is that the employee will be found to have violated his or her status in the United States. This will require the employee to leave the United States and return in good status. Until the employee leaves and returns to the United States, the employee is at risk of being placed in removal (deportation) proceedings.
Depending on the circumstances, the employee may find it more difficult to obtain nonimmigrant visas to the United States in the future. It also will impact that employee’s eligibility to adjust status (obtain lawful permanent residency, or the green card) in the United States in the future.
For an employer, there are four major sanctions:
- An employer may be fined by the Department of Labor or by USCIS.
- If the employee’s salary or hours were reduced, an employer can be forced to pay back wages at the higher rate.
- Depending on the visa category, the employer may be subject to additional regulation with future petitions.
- An employer can be barred from petitioning for future employees or from petitioning to extend other existing employees’ nonimmigrant visa statuses.
What should I do if I think there has been a material change in employment?
If you are an employer and there is a possibility that the terms of employment will be changing for an employee, obtain immigration counsel immediately. It is always better to file an amended petition before the change happens than after a change has happened.
If you are an employee and it appears that there has been a material change in employment, talk to your employer to confirm that an amended petition is has been filed or that an amended petition is being prepared for filing. If you have specific concerns about your employment, it is worth having a consultation with an immigration attorney.