Recruiting an H-1B employee is a great way to move them up the ladder in your company. But that doesn’t mean merely acknowledging their effort and success — it also means staying up to date with H-1B visa regulations and the laws of the US. H-1B visas were created to fill specialized jobs by American employers through foreign talent but the program has certain guidelines that need to be followed when altering an employee’s position.
Let’s take you through what to look for and what to do so that your H-1B promotion goes off without a hitch while staying compliant with immigration law.
The Fight To Make Sense of Promotions in the H-1B Program
Promotions in the H-1B program are tricky as if any major shift in the employee’s job could require visa changes. Then you have to decide whether the promotion is a material shift in the worker’s work duties. An essential change could be a material shift like the work tasks, knowledge demands, degree level, or workplace. Change any of these factors and the employer must file a revised H-1B petition.
Verify if the Employee is Promotion-Aligned
If you are promoting an H-1B employee, you should check that the employee is eligible to be promoted and that the promotion will not violate H-1B visa guidelines:
- Occupation of Specialty: The new job function must not be different than the specialty job for which the employee received their H-1B. This means that the worker has to stay working in a specialized or skilled job.
- Legal Status: The employee has to have been legally legal during the period of employment (for example, working according to the visa terms, only for the employer that sponsors him/her, and not doing unauthorized work).
- Salary Compliance: The employee’s salary post-promotion must be at or above the minimum wage in effect for his/her title and geographic location, as defined by the U.S. Department of Labor (DOL).
- No Alteration to Specialty Occupation: The promotion shouldn’t alter the job so that it no longer qualifies as a specialty occupation for the H-1B visa.
When to Submit an Amended H-1B Petition
- If the promotion involves a major job change — new job title, new job role, and shift location — you may have to submit a revised H-1B petition to U.S. Citizenship and Immigration Services (USCIS). It must be done in order not to violate immigration rules as not filing an amendment when you are supposed to could end up being the employee’s liability and the employer’s liability.
- Take the time to discuss with an immigration lawyer whether you need an amended petition. They can help walk you through it and make sure all the right documents are filed.
Maintain wages compliant with the Average Wage.
One of the most important factors for the H-1B promotion is making sure the new salary is within the wage standards. The Department of Labor (DOL) sets the wages for individual jobs and occupations in certain areas. If an employee’s salary increases as part of a promotion, then the new salary needs to match these wage levels.
If the promotion leads to a raise, make sure to add the wage to the employee’s LCA. Require an H-1B petition revision if needed to ensure the salary is legal.
Monitoring Visa Expiration and Extensions
H-1B visas last for a maximum of six years. If the worker’s H-1B is running out of six years, and they haven’t applied for a green card, you have to plan for their future. There are exceptions for H-1B workers, and sometimes a green card petition is pending, that allows extensions above the 6 years.
During the promotion, you can check the expiration date of the employee visa and determine if they will require an extension or a new visa petition. This can prevent any holes in the worker’s right to work legally in the US.
Consider the Green Card Process
This can be the right moment to begin the green card process for an H-1B worker if the worker has worked for your company for some time and is being promoted to a new role. The green card process takes years, so get started in the early stages. Consult an immigration lawyer about how to manage all the complexities of applying for permanent residency.
If the employee’s promotion could have been associated with a more permanent position in your company, then perhaps the time to apply for a green card sponsorship is now. It does this to ensure the worker’s immigration status doesn’t become delinquent when they move up the organization.
Becoming a Supporter to Your H-1B Employee
Promotions are a great career accomplishment, but the immigration laws can be a pain in the rear for H-1B employees. They might have more worries if we can provide support and resources. Make sure that the employee is equipped with immigration counsel who can walk them through the process and communicate any possible change in visa status. They need to know what the status of their visa is and how they’re promoted to reduce the fear and retention of staff.
What You Need to Know When Marketing an H-1B Employer
Recruiting an H-1B worker is a very exciting move for the worker as well as the company. But you need to make sure that the promotion is compliant with H-1B visa policies or it will end up being sued. These are the main steps to be noted:
- Verify eligibility: Promotion must not affect the nature of the job or wages of the employee in ways that could fall into violation of visas.
- Prepare an amended petition if necessary: If the promotion entails a substantive change in job responsibilities, workplace, or salary, an amended H-1B petition might be necessary.
- Be wage compliant: The new salary needs to align with current wage levels for the job and site.
- Visa expiration: Monitor the employee’s visa expiration date and file for an extension/start the green card process if needed.
- Support: Supply materials and legal guidance to take the pressure off of the promotion process.
Following these rules and enlisting the help of immigration experts, you can get your H-1B employees promoted while staying within the US immigration laws.
Filing an Amended H-1B Petition for Promotions
When an H-1B employee receives a promotion that involves changes to their job duties, salary, or work location, filing an amended H-1B petition is necessary. This guide outlines the step-by-step process for filing an amended petition, required documentation, and compliance with regulations.
Step-by-Step Process for Filing an Amended H-1B Petition
1. Assess the Need for an Amendment
Before initiating the amendment process, determine if the changes in employment terms are material. Material changes include alterations in job title, job duties, salary adjustments, or a change in work location. If any of these factors change significantly, an amended petition must be filed.
2. File a New Labor Condition Application (LCA)
The first step in the amendment process is to file a new LCA with the Department of Labor (DOL). This application must reflect the updated job title, duties, and wage information. The LCA is crucial as it ensures compliance with wage requirements and labor regulations.
3. Prepare Form I-129
Once the new LCA is certified, complete Form I-129 (Petition for a Nonimmigrant Worker). This form must include:
- The new LCA.
- A detailed description of the employee’s new job duties.
- Updated wage information.
4. Submit the Amended Petition to USCIS
After preparing Form I-129 and gathering all necessary documentation, submit the petition to U.S. Citizenship and Immigration Services (USCIS). Ensure that all forms are signed and that you include the appropriate filing fees.
5. Continue Employment During Processing
While waiting for USCIS to process the amended petition, the employee can continue working under the terms of the original petition as long as the amendment is filed timely.
Required Documentation for an Amended H-1B Petition
When filing an amended H-1B petition, employers must provide specific documentation:
- New LCA: Reflecting updated job title, duties, and wage information.
- Job Descriptions: Detailed descriptions of both the old and new positions.
- Wage Information: Documentation showing compliance with prevailing wage requirements.
These documents are essential to substantiate the changes being made in the petition.
What to Do If There Are Changes in Work Location After Promotion
If a promotion involves a change in work location outside of the metropolitan statistical area (MSA) covered by the original petition:
- File a New LCA: A new LCA must be filed reflecting the new work location.
- Submit Amended I-129: Include this new LCA when submitting Form I-129 to USCIS.
It’s important to note that employees may start working at the new location as soon as they file the amended petition without waiting for approval.
Timeline for Submitting an Amended Petition to USCIS
Timeliness is critical when filing an amended H-1B petition:
- Immediately After Promotion: Ideally, file the amended petition as soon as you know about the promotion and any associated changes.
- USCIS Processing Times: While processing times can vary, it’s advisable to file promptly to avoid potential violations of H-1B regulations.
Wage Adjustments and the Prevailing Wage Requirement
Determining Wage Increases
When promoting an H-1B employee, it’s essential to assess whether their new position requires a wage increase to meet prevailing wage standards:
- Review DOL Guidelines: Check if the new role falls under a different occupational category that may have different prevailing wage requirements.
- Consult Wage Surveys: Utilize wage surveys or resources from DOL to verify compliance with prevailing wage laws.
Ensuring Compliance with DOL Wage Requirements
Employers must ensure that after a promotion:
- The employee’s salary meets or exceeds prevailing wages for their new position.
- The updated LCA reflects this new wage information.
Updating the LCA with New Wage Information
To update wages:
- File a New LCA: As part of the amendment process, submit a new LCA that includes updated wage details.
- Documentation: Include evidence supporting why this wage meets or exceeds prevailing standards.
Understanding the Role of LCA in the H-1B Process
The LCA is a critical document that ensures employers comply with labor laws regarding wages and working conditions for H-1B employees. It must be updated whenever there are significant changes in employment conditions.
Filing a New LCA When Promoting an H-1B Employee
When promoting an employee:
- Submit a new LCA reflecting updated job titles, duties, and salary adjustments.
Requirements for LCA in the Context of Job Title, Duties, and Salary Adjustments
The new LCA must clearly outline:
- The specific job title.
- A detailed description of job duties.
- The proposed salary complies with prevailing wage standards.
Differences in LCA Filings for Promotions vs. Initial H-1B Applications
Unlike initial applications where employers establish baseline conditions for employment, promotions require updating existing information to reflect changes accurately.
Maintaining Compliance with H-1B Visa Regulations
Addressing Substantial Changes in Duties or Job Title
If an employee’s job duties change substantially:
- An amended petition must be filed detailing these changes.
Importance of Timely Filing for Amendments and LCA Updates
Timely filing is crucial to avoid potential violations:
- Delays can lead to non-compliance issues affecting both employer and employee status.
Addressing Issues with Worksite Changes Due to Promotion
If promotions involve additional worksites or geographic relocations:
- File New LCAs: For each new worksite.
- Submit Amended Petitions: Reflecting all changes related to job duties and locations.
Communicating with the H-1B Employee About Their Promotion
Transparency is key when discussing promotions with H-1B employees:
Discussing Promotion Process and Changes to H-1B Status
Ensure employees understand how their promotion affects their visa status:
- Provide clear explanations about what changes will occur and how they will be documented through amendments.
Ensuring Understanding of Visa Impact
Discuss how promotions may impact their employment authorization:
- Clarify timelines for amendments and what they can expect during processing.
Navigating Changes in Job Location Post-Promotion
When addressing changes in work location after a promotion:
Filing a New LCA if Promotion Involves New Geographic Area
If moving outside of approved MSA:
- File a new LCA reflecting this change.
- Ensure compliance with local labor laws regarding wages and working conditions.
Submitting an Amended Petition for Worksite Location Changes
Follow these steps:
- Prepare necessary documentation reflecting both job duties and location changes.
- Submit amended Form I-129 along with updated LCA promptly.
Handling Promotions for H-1B Workers in Specialty Occupations
Promoting H-1B workers requires careful navigation of immigration regulations, particularly regarding specialty occupations. Understanding how promotions affect H-1B status is crucial for both employers and employees. This guide outlines the implications of promotions, documentation requirements, and best practices to ensure compliance.
Understanding Specialty Occupations and Promotions
A specialty occupation typically requires a bachelor’s degree or higher in a specific field, along with specialized knowledge. Common fields include IT, engineering, healthcare, and academia. To maintain H-1B status after a promotion, the new role must continue to meet these criteria.
Impact of Promotion on Specialty Occupation Classification
When an employee is promoted, it’s essential to assess whether their new position still qualifies as a specialty occupation. If the new role involves different duties or requires different qualifications that do not align with the original H-1B petition, it may jeopardize the employee’s visa status.
What Happens if the New Role No Longer Meets Qualifications?
If the promoted position no longer qualifies as a specialty occupation:
- File an Amended Petition: Employers must submit an amended H-1B petition to USCIS to reflect the changes in job duties and ensure compliance.
- Evaluate Alternative Options: If the position cannot be classified as a specialty occupation, consider other visa options or employment arrangements for the employee.
Avoiding Issues with USCIS When Duties Change
To avoid complications with USCIS when an employee’s duties change significantly:
- Consult Immigration Counsel: Engage an immigration attorney to evaluate whether an amendment is necessary based on the nature of the promotion.
- Document Changes Thoroughly: Maintain detailed records of job descriptions, responsibilities, and any changes made during the promotion process.
Impact of Promotions on H-1B Workers’ Dependents
Effects on Spouse and Children (H-4 Visa Holders)
Promotions can also affect H-4 visa holders:
- H-4 Visa Status: A promotion itself does not directly impact the status of dependents; however, any changes in employment conditions may necessitate updates in their documentation.
Updating H-4 Visa Status After a Promotion
If there are changes in salary or work location that affect the primary H-1B holder’s status:
- File Updates as Necessary: Ensure that any changes are communicated to USCIS and reflected in the dependents’ visa applications if applicable.
Impact on Work Authorization for H-4 Visa Holders
As of recent regulations, H-4 visa holders may apply for work authorization under certain conditions. If the primary H-1B worker receives a promotion that leads to changes in their employment status:
- Review Eligibility for Work Authorization: Ensure that H-4 dependents are aware of their rights to apply for work authorization if eligible.
What to Do if the Promotion is Denied or Delayed
- Communicate with Employees: Keep employees informed about the status of their promotion and any potential implications for their visa status.
If a promotion application is delayed or denied:
Options for Appealing or Re-filing
In cases where USCIS denies a promotion petition:
- Consider Filing an Appeal: Review the reasons for denial and determine if an appeal is warranted.
- Re-file if Necessary: If significant changes can be made to address USCIS concerns, consider re-filing the petition with additional documentation.
Navigating Employee Dissatisfaction During Delays
Delays in promotion processes can lead to employee dissatisfaction:
- Maintain Open Communication: Regularly update employees on progress and provide support during uncertain times.
Documentation to Keep in the H-1B Employee’s File
Importance of Accurate Records
Keeping accurate records throughout the promotion process is vital for compliance:
- Documentation Requirements: Maintain updated records such as:
- New Labor Condition Application (LCA)
- Job descriptions
- Wage records
- Any correspondence with USCIS regarding promotions.
Documenting Reasons for Promotion
Ensure that reasons for promotions are well-documented:
- Consistency with H-1B Petition: Align promotional reasons with what is stated in the H-1B petition to avoid discrepancies during audits or reviews.
Potential Risks and Challenges When Promoting an H-1B Employee
Improperly filed amendments or LCAs can lead to severe legal consequences:
- Non-compliance Risks: Failing to comply with regulations can result in penalties or revocation of the H-1B visa.
Handling Complex Cases Involving Multiple Legal Factors
Promotions that involve significant wage increases or changes in worksite require careful handling:
- Consult Legal Experts: Engage immigration attorneys when facing complex scenarios that could affect compliance.
Best Practices for Promoting H-1B Employees
To facilitate smooth transitions when promoting H-1B workers:
- Develop Clear Policies: Establish company policies outlining procedures for promotions within the context of immigration regulations.
- Regular Training: Provide training for HR personnel on immigration compliance related to promotions.
Working with Immigration Attorneys
Collaboration with immigration attorneys can streamline the promotion process:
- Ensure Compliance: Attorneys can help navigate regulatory requirements and assist in preparing necessary documentation.
How Law and Visas Can Help?
At Law and Visas, our team of expert immigration consultants is here to make your travel to the U.S. straightforward and successful. Whether you’re applying for an L-1 Visa or an O-1 Visa, we handle every step—from preparing your application to gathering the required documents.
Our Immigration Consultants and Lawyers ensure that your application meets the highest standards, with no details missed. We’ll also keep you informed throughout the process and coordinate with the immigration office or embassy on your behalf.
Law and Visas has a strong record of helping clients secure the visas/permits they need to visit the United States. You can call us today at +234 812 5505 986 to learn how we can help you.
