On Jul 15 2015 by Elise A. Fialkowski

Changes to Foreign National’s Employment Can Affect Visa Status

Changes in any foreign national's employment may impact visa status and employment authorization in the United States. Such changes may include but are not limited to changes in work location, job duties and salary.

Changes in the employing entity, including, for example, corporate structure and ownership changes, may also impact immigration status. The U.S. Citizenship and Immigration Services (USCIS) generally requires that an amended petition be filed to alert the government of any “material change.” If no timely amended petition is filed, the USCIS may find that the foreign national is not in valid immigration status and as such no longer has work authorization.

The USCIS Administrative Appeals Office (AAO) recently issued a precedential decision, Matter of Simeio Solutions LLC, I&N Dec. 42 (April 2015), which held that USCIS properly revoked the H-1B petition filed by an employer that failed to list all the locations of actual employment for one of its employees. The decision is significant as it rejected prior guidance and left the foreign national employee without valid visa status and work authorization.

The H-1B visa is one of the most common visas for professionals. In order to qualify, the position must require at least a bachelor’s degree (or its equivalent) in a specific field, the employee must have the required degree, and the employee must be paid the required wage rate for the area of intended employment. The employer must obtain and submit a certified Labor Condition Application (LCA) from the U.S. Department of Labor with each H-1B filing. In the LCA, the employer must attest, among other things, that it is paying the higher of either: (1) the prevailing wage for the occupational classification in the area of intended employment established by acceptable survey; or (2) the actual wage paid by the employer to other employees with similar experience and qualifications who perform the same services.

In revoking the approved H-1B petition in Simeio Solutions, the AAO announced a broad rule applicable to all H-1B employers: any change in the employment location of the beneficiary that would normally require a corresponding LCA certification is a “material change” that requires the submission of a new H-1B petition. The rule is legally binding, and therefore, USCIS adjudicators will require that any movement of an H-1B employee to a new geographical area outside the area of intended employment be accompanied by an amended H-1B petition. This will be necessary even if there are no other changes in the terms and conditions of employment, and regardless of whether the employer’s salary exceeds the required wage in the new geographic area.

Following the decision, the USCIS issued “Draft Guidance on When to File an Amended H-1B Petition After the Simeio Decision.” USCIS accepted comments on the draft guidance through June 26. The draft guidance is controversial as it applied the Simeio decision retroactively despite prior USCIS guidance suggesting that it may be sufficient simply to file and post a new LCA for employment outside the area of intended employment. Under the draft guidance, a deadline of Aug. 19 was established not only for H-1B employees who “were changing worksite locations” at the time of the decision, but also for those who changed locations prior to the issuance of the decision: “If your H-1B workers changed their worksite location before the Simeio Solutions decision, USCIS will not take adverse action against you or your employees if you, in good faith, relied on prior non-binding agency correspondence and did not file an amended petition due to a change in [a metropolitan statistical area] or area of intended employment by May 21. However, as noted above, you must now file an amended petition for these H-1B employees by Aug. 19. “

Retroactive application of this decision will be costly to many employers that followed prior guidance. Many groups, including the American Immigration Lawyers Association, submitted comments to the draft guidance. There have not been any further updates to the draft guidance despite the Aug. 19 deadline and the closure of the comment period.

Other changes in employment can impact visa status and work authorization of foreign national employees. Any time there is an underlying change that impacts a regulatory requirement for the visa classification, there is a risk that the USCIS may find that the employee is out of status and no longer work-authorized. Changes to job duties for an H-1B employee, for example, may negatively impact status if the new position is no longer a specialty occupation that requires a specialized degree possessed by the employee.

Other visa classifications are impacted as well. For example, to qualify for an L-1 intracompany transferee visa, it must be shown that the foreign national worked for a company abroad as an executive, manager or specialized knowledge employee full-time for a year prior to transfer to work for a related company in the United States (parent, subsidiary, or branch) in one of those positions. Any L-1 petition adjudicated by USCIS is specific to the petitioning company. Therefore, if the employee is moved to another corporate entity in the United States (even if related to the foreign company), the USCIS may find that an amendment was required as the USCIS did not adjudicate whether the requisite qualifying corporate relationship existed with the new employer. These are just a few examples.

It is critical that employers be vigilant as changes in employment may impact underlying visa status. The USCIS Fraud Detection and National Security (FDNS) unit is now conducting unannounced administrative site visits for both H-1B petitions and L-1A executive and manager petitions. During these unannounced site visits, the FDNS agent will ask to speak to a representative of the employer and to the employee, and FDNS will determine whether the employee continues to be employed consistent with terms set forth in the approved visa petition. Should there be material changes without an amendment, the underlying visa and work authorization can be revoked. The U.S. Consulates often request updated information when a foreign national goes abroad to apply for a visa. Should the information provided be inconsistent with the underlying approved petition, the consulate may similarly deny the visa petition.

It is therefore advisable that any petitioning employer establish a compliance program to track changes that may impact foreign national employees. In the wake of increased FDNS site visits and consular review, my firm has worked with clients to develop compliance programs to track employment changes that may require the filing of new or amended immigration petitions. It is essential that any changes be reviewed to determine if they will impact the underlying visa status and work authorization.

This article was published in The Legal Intelligencer on July 15, 2015.