It’s that time of year when employers prepare and file H-1B visa petitions on behalf of foreign workers. The H-1B visa is an employment-based, non-immigrant visa category for temporary workers. H-1B visas allow foreign workers with at least a bachelor’s degree or equivalent to work in specialty occupations for U.S. employers. They have become an essential tool for many businesses to get highly skilled and qualified workers in many different fields. In fact, many industries continue to lobby the government to raise the H-1B caps, which limit the number of H-1B visas granted each year, and thereby enable more foreign workers to work in the U.S.
Many H-1B employers, especially in the IT industry, send their employees to various locations to work for clients. Unfortunately, they don’t always realize that such a move could result in revocation of an H-1B visa. On July 21, 2015, USCIS released its final guidance on when such employers must file an amended or new H-1B petition for changes in work location. This follows a recent decision in Matter of Simeio Solutions, LLC (Simeio). The decision and guidance clarify when there is a material change in the conditions of employment, the employer must obtain a new Labor Condition Application for Nonimmigrant Workers (LCA) and amended H-1B petitions.
Prior to this new decision, there was a great deal of ambiguity in the rules which resulted in conflicting decisions around the country.
In Simeio, the company had an H-1B employee working at various client sites in different parts of CA and NY. The company didn’t disclose this and USCIS revoked the H-1B visa. The case went to the Administrative Appeals Office (AAO) which confirmed the USCIS action. The AAO held that an H-1B employer must file an amended or new H-1B petition when a new LCA is required due to a change in the H-1B worker’s place of employment.
New rules to benefit the families of H-1B visa holders went into effect on May 26,, 2015. The Department of Homeland Security (“DHS”) granted certain spouses with H-4 visas the ability to seek employment authorization so they could work in the US. The purpose behind the new regulation is to help the US attract and retain highly skilled foreign workers and minimize the disruption to US businesses which results when H-1B nonimmigrants choose not to remain in the US and pursue lawful permanent resident status.
Prior to the May regulation, the families of employees with H-1B visas would get an H-4 visa, which did not allow them to work in the US. As a result, the family would have to rely on the H-1B nonimmigrant as sole support, a burden that would cause some workers to leave the US. It was especially burdensome to H-1B employees who have a long waiting period to get a green card as is the case with workers from countries with low annual quotas for green cards, such as India and China.
In today’s labor market, foreign workers fill a critical need — particularly in the Science, Technology, Engineering, and Math (STEM) fields. The H-1B Visa program has provided the main route for these skilled foreign workers to pursue opportunities with U.S. companies, enabling them to take domestic jobs that might otherwise remain unfilled. [Read more…]