When an employer is unfamiliar with the H-1B process, the most common question I hear after approval is, “What should we do next?” When an employee changes their status to H-1B, there are several important steps and considerations to ensure compliance with U.S. immigration laws. Here is a comprehensive guide for employers navigating this process:
Key Steps for Employers:
Compliance with I-9: Update the employees’ Form I-9 to reflect their new H-1B status.
Tax Contributions: Employers must begin deducting Federal Insurance Contributions Act (FICA) taxes from the H-1B employee’s pay starting on their first day of H-1B employment.
Compliance with H-1B Employment
Employment Terms: Ensure that all conditions of the H-1B are met, including working ONLY for the H-1B petitioning employer as per the terms set out in the filed petition (e.g. salary, work location, job duties, etc.).
Wages: The H-1B employee cannot be paid less than the wage set forth in the H-1B petition. Standard raises are allowed without the need for an amendment. However, if there is a large increase in pay, please contact your attorney to confirm if an amendment is needed.
If the H-1B employer fails to pay the employee the offered wage, the employee could report them to the Department of Labor (DOL). DOL could then start an investigation, which could lead to the H-1B employer having to pay the employee back wages along with other penalties.
**In addition, it is required the H-1B employers pay for the fees involved with the H-1B petition, this includes attorney’s fees and filing fees. They should NEVER try to recoup these H-1B expenses from the employee. However, the employee can pay is the premium processing fee and all costs associated with the dependent H-4 applications.**
Maintaining Documents: H-1B employers need to maintain several records in case of a site visit or audit. For DOL purposes, a Public Access File (PAF) will need to be maintained for each LCA that is submitted. For more specifics about the Public Access file and contents, please see our article: Employer’s Responsibility To Maintain A Public Access File (PAF)
In case of a USCIS site visit, the H-1B employer should also maintain a personnel file, containing H-1B Approval Notices, completed I-9s, submitted H-1B petitions, resignation letters, etc. This will need to be kept separate from the PAF.
Substantial Changes: If there are any changes to the employment terms, such as title, job location, etc. please reach out to your attorney to confirm if an amendment will need to be filed with USCIS. If an amendment is needed, the petition must be filed BEFORE the change in employment occurs.
In addition to changes to the H-1B position, changes to the H-1B employer’s structure, e.g. mergers, restructuring, acquisitions, etc. could also affect the H-1B employee’s status. It is important to inform your attorney of these changes to determine if an amendment will need to be filed.
Employee Address Changes: If the H-1B employee moves he/she will need to change their address with USCIS within 10 days of moving. This can be done by filing form AR-11 or submitting the change of address on the MyUSCIS account.
Timely Extensions: If the H-1B employee plans on continuing his/her employment beyond the time allotted on the H-1B Approval Noice, an extension will need to be submitted. This extension can be filed up to 6 months before the expiration.
Travel Considerations: If the H-1B employee is traveling outside the US, he/she will need to have a valid H-1B visa for re-entry. If the employee does not have a valid visa, they will need to go for stamping before returning to the US. This will typically need to be done at the H-1B employees’ home country. There are some consulates that allow third country nationals to attend a visa appointment, but these are few and far between.
In addition, if there have been any changes to the H-1B employment (even if it was not a substantial change), please contact the attorney before the H-1B employee travels. Although USCIS might not require an amendment, the employee could still have issues with the consulate when obtaining a visa. It might be recommended that an Amendment be filed to avoid any issues at the consulate.
Termination: If the H-1B employee resigns, the employer will need to take the following steps
Step 1: Confirm the resignation in writing, meaning provide a letter to the H-1B employee accepting their resignation and confirming the last date of employment.
Step 2: Submit a letter to USCIS informing them of the last date of employment and request that the petition be withdrawn. USCIS should send a letter confirming the withdrawal. Although, it could take several months to receive the response.
If the H-1B employer terminates the employment, the following steps should be completed to ensure a “bona-fide termination.”
Step 1: Confirm the termination in writing, including the last day of employment.
Step 2: Offer to pay the H-1B employee the reasonable cost of return transportation abroad (Abroad, meaning the last place of foreign residence).
Step 3: Send a letter to USCIS requesting that the H-1B petition be withdrawn.
Failure to take all three steps can result in a continuing obligation to pay the H-1B employee’s wage, which gives said employee the ability to make a complaint with DOL.
You can find more information on terminating an H-1B employee by going to the following link: Terminating An H-1B Employee. What Employers Need To Know
Navigating the H-1B process as a new employer can seem daunting, but by adhering to the outlined steps and maintaining compliance, employers can manage their responsibilities effectively.
If you have any questions or concerns, please contact me at cprescott@patellegal.com.