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Promotion at your visa sponsor could get you in immigration trouble
By Jim Nolan | March 3, 2010
If you promote an H-1B visa holder or change him or her to part-time you may have to file for a new H-1B visa before the changes take effect. If you don’t you could put your worker in illegal status. With the Department of Labor visiting more companies looking for changes in the visa papers this accidental mistake can be very serious and cause your worker to have to stop working quickly and leave the U.S.
The rule about this is simple, but how to apply it in real life is more complicated.
The rule is that if a person with an H-1B visa gets a new job, even in the same company, they can’t take it without the company first filing a new H-1B visa case. A job is “new” if it “significantly” different then the job in the visa papers.
What is “significantly” different is the problem. Even if the you don’t think it is, if Immigration thinks so they will cancel the visa and the person may suddenly have to leave the U.S.
There are a couple of things Immigration thinks about to see if a new job is “significantly” different than the visa job.
- Is there a new title? If so, it maybe new, but if it really the same job with a few more duties than the new title, by itself, isn’t “significantly” different.
- Is there new management responsibilities? If the visa job had no management responsibilities but the new one does it is probably a “new “ job.
- Is there a new salary? If the job has a significantly higher salary than the job in the visa papers it is probably a new job. My rule, though not an official one from Immigration, is that if the new job comes with a raise of 10% or more it is probably a “new” job.
If after you review these points you think your worker is getting a “new” job, you should file a new H-1B visa case before they start it. They don’t have to wait for it to be approved.
Another common situation is where a worker who was sponsored for a full-time job becomes part-time, either voluntarily or not. If this change is only temporary, even if you don’t know for sure how long, the company doesn’t have to file for a new H-1B visa.
However, it this change is permanent then the company has to file for a new H-1B visa before the change can take place.
Topics: H-1B, Practical Immigration Tips | 1 Comment »
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March 17th, 2010 at 7:07 pm
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