The process of hiring and keeping foreign nationals to work in the United States has been made more complicated for employers by a recent immigration court ruling. Employers are allowed to hire a limited number of foreign nationals each year pursuant to the U.S. Citizenship and Immigration Service’s H-1B visa program. The program is intended to help employers fill positions requiring certain skills when the employer cannot find qualified U.S. citizens to fill the positions.
To obtain an H-1B visa for a foreign national, an employer must file a petition with USCIS stating that the position to be filled requires a bachelor’s degree or higher; that the foreign national has the required academic degree or experience; and that the employee will be paid the prevailing wage rate for the area in which he or she will work. USCIS also requires employers to inform the agency of any material changes in the foreign national’s work situation.
Filing a petition for an H-1B visa does not guarantee the employer that the foreign national will actually receive the visa because USCIS imposes a cap on the number of the visas it will issue each year. For positions requiring at least a bachelor’s degree, there is a cap of 65,000 visas each year; for positions requiring an advanced degree, there is a cap of 20,000 visas each year. Over the past 10 years, the demand for the visas has far exceeded the number available. For example, in 2014, USCIS received 174,000 petitions for H-1B visa to be issued in 2015, roughly twice the number of visas it was authorized to issue. The huge demand for the visas has forced USCIS to adopt a lottery system. As a result of the lottery system, many employers are not able to obtain as many of the H-1B visas as they want.
Changes in Employment Status Impacts Visas
Many employers win in the USCIS lottery and obtain H-1B visas for some foreign nationals, but that does not end the employers’ immigration responsibilities. There are several possible changes in the foreign national’s employment relationship that can affect the foreign national’s visa status and result in loss of his or her authorization to work in the United States.
A change in the foreign national’s work location is one of the changes that can affect the employee’s visa status. Until recently, an employer did not have to identify all the locations where a foreign national might be working to obtain an H-1B visa. However, that changed in April 2015, when the USCIS Administrative Appeals Court ruled that USCIS had correctly denied an employer’s petition for an H-1B visa because the employer had failed to list all the locations where the employee would work. The court said that any change in the employee’s work location is a material change in the employment relationship, which requires the submission of a new visa petition by the employer. As a result of the ruling, the foreign national lost his H-1B visa status and his authorization to work in the United States.
The lesson to be learned from this court ruling is clear: Employers must inform USCIS of any change in the location where the foreign national is working with an amended visa petition. To complicate things further, USCIS has interpreted the court ruling so that it applies retroactively, meaning that it applies to foreign nationals who changed their worksite locations before the court issued its opinion.
Although the court opinion only addressed a change in the location where the foreign national worked, it is likely to be applied to other changes in the foreign national’s work relationship, including changes in job duties, salary. This will also affect the employer, including changes in the employer’s corporate structure or its ownership. Employers will need to keep USCIS abreast of these changes, too, or risk having their foreign national employees lose their H-1B status.
Philadelphia Immigration Lawyers at Surin & Griffin Represent All Aspects of Immigration Law
If you are a foreign national with questions about your immigration status, or an employer with questions about the immigration status of your employees, you should consult an immigration lawyer. Philadelphia immigration lawyers with Surin & Griffin, P.C. are knowledgeable in all aspects of immigration law and have the experience to get results. We have been helping clients in New Jersey and Pennsylvania with immigration matters for more than 15 years, including removals, deportations, family visas, asylum, business visas, employment/work visas, non-immigrant visas, labor certifications, and abuse petitions. To contact us in our Philadelphia offices, call 215-925-4435 or contact us online.