H-1B Modernization Rule Takes Effect: Repercussions of Job Changes for H-1B Employers and Employees
On Jan. 17, 2025, U.S. Citizenship and Immigration Services (USCIS) regulations focusing on the H-1B nonimmigrant classification (a nonimmigrant status for foreign workers in specialty occupations) went into effect. In part, these regulations clarify when filing a new or amended H-1B petition is required. The new regulations also introduce a requirement that H-1B extension or amendment petitions include evidence that the H-1B employee has previously maintained their nonimmigrant status. In the current climate of increased scrutiny over immigration compliance, employers should take necessary steps to ensure that their H-1B sponsorship programs comply with regulations.
For background, when an H-1B petition is filed, the employer (also called the petitioner) must detail both the position the H-1B employee will hold and the conditions of employment, including the location(s) of employment. These new regulations clarify when an employer must update USCIS about changes to the employment as listed in the H-1B petition. Why does this matter? Failure to file an amendment or new petition on time will increase the likelihood of USCIS requiring the foreign employee to leave the U.S. to complete their processing abroad (i.e., through consular processing) rather than completing the H-1B extension process in the U.S. In addition to the expense of traveling abroad, consular processing may take weeks to several months to complete, which will disrupt the employee’s employment.
Moreover, as we enter an era of increased employer compliance review, employers can expect an increase in site visits by USCIS’s Fraud Detection and National Security Directorate (FDNS). FDNS carries out compliance reviews to ensure that petitioners (employers) and beneficiaries (employees) adhere to the terms of the Labor Condition Application and H-1B petition filings. Accordingly, failure to notify USCIS of certain changes to the terms of employment can be uncovered by these FDNS visits, and result in USCIS reopening an approved petition to issue a Notice of Intent to Revoke or initiate further investigation.
When Does an Employer Have To Report a Change to USCIS?
If there is a material change to what was described in the H-1B petition, the H-1B employer must file an amendment with USCIS. For example, if an employer is considering transferring an H-1B employee to a new office, allowing the employee to work remotely from a new location, promoting the employee, making changes to an employee’s job duties or moving the employee from full-time to part-time status, the employer should contact immigration counsel to determine if the change is material. A geographic change to the H-1B employee’s work location (e.g., allowing the employee to work remotely from Denver instead of from an office in Chicago), will almost certainly be considered a material change requiring a new filing. Changes to work locations within the same general geographic area (e.g., within the same Metropolitan Statistical Area) are typically the exception where an amended petition may not be required, and a Notice of Filing would be sufficient.
Relatedly, if an H-1B employee moves to a new geographic location, even at the employee’s request, the H-1B employer will be bound to pay the required wage in the new geographic location if that location has a higher required wage. As a result, such a potential change should be discussed with immigration counsel well in advance of a potential reassignment.
While it was always best practice to file H-1B amendments in advance of a job change, it is now essential that any change contemplated in an H-1B employee’s job duties or conditions of employment be reviewed before the change takes place.
For more information regarding H-1B sponsorship and compliance, please reach out to one of our Immigration Practice Co-Chairs Manuela M. Morais or Jeffrey M. Zimskind.
