Returning workers must confirm H-1B compliance

On Behalf of | Nov 5, 2021 | Immigration News

The H-1B workforce is returning to work as American offices are reopening. These workers had to comply with H-1B requirements when they worked from home and may have to comply with other rules when they return to the office or the employer’s workplace.

H-1B

The H-1b program is intended to assist employers who cannot obtain business skills and abilities from the American workforce by allowing the temporary employment of qualified workers who are not permitted to work in this country. This program allows employers to hire nonimmigrant workers in specialty occupations or as a fashion model of distinguished merit and ability.  Specialty occupations require the use of highly specialized knowledge and the completion of a bachelor’s degree program or its equivalent.

This country’s immigration law contains standards to protect similarly employed American workers from the adverse impact of the employment of nonimmigrant workers and protect H-1B workers. Employers must attest to the U.S. Department of Labor that they pay wages to H-1B workers that equal wages paid to other workers with equivalent qualifications and experience or the job’s prevailing wage, whichever is greater.

Recent obligations

When workers engaged in remote work, their H-1B petitions had to be amended. Now as they return to their offices and workplaces, they may need to fulfill other obligations.

Sponsoring employers must assure that they comply with the Labor Condition Application requirements and determine whether an H-1B amendment is needed.

If the sponsoring employer already obtained a certified LCA for the same physical workspace that the working is returning to, the H-1b worker could resume working at that location. However, their LCA had to include the metropolitan statistical area covering the H-1B worker’s home job site.

The U.S. Citizenship and Immigration Services did not revise the LCA compliance requirements despite the business shutdowns beginning last year. A new LCA must be filed and the H-1B application should be amended if there is a material change in H1-B employment. When this occurs, the sponsoring employer needs to attest to working conditions, employment terms, and employment location, among other things.

Material changes requiring an amendment include employee relocation farther than 50 miles. These also include a notable change to an employee’s duties, a different occupational classification, promotions, reduction of full-time work to part-time work or a drop in salary.

A sponsoring employer must timely file a new LCA and amended H-1B petition for a notable change, such as change in workplace, before that change occurs. But an amendment takes the same amount of documentation as new H-1B or a change in employer. Also, the USCIS treats an amendment as an invitation to newly examine an already decided case.

These requirements may be complicated, and a worker may unintentionally give up important rights. An attorney can assist workers with meeting federal legal requirements and navigate the immigration system to continue to work in this country.

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