Hiring foreign nationals is not like hiring American citizens and permanent residents
A material change in the conditions of an H-1B employee’s job can trigger amendment obligations, but when is a material change a material change?
For most businesses, dealing with immigration lawyers is episodic. On the H-1B (Specialty Occupation) visa front, once the working visa petition is approved and the foreign national is employed, the employer’s next contact with counsel will likely be to extend H-1B status or to pursue green card processing. Sometimes months transpire; sometimes years.
On-again-off-again relationship between employers and immigration counsel
However, this on-again-off-again relationship between employers and immigration counsel is becoming increasingly problematic as the Immigration authorities focus more particularly on whether employers are, in fact, meeting their ongoing employment obligations under Immigration and Labor Department regulations.
As we have discussed previously, the Administrative Appeals Office, in the 2015 precedential decision--Matter of Simeio Solutions—held that a change in employment location from that expressly recited in the Labor Condition Application (certification of which is a precondition to applying for H-1B status) constituted a material change that triggered the requirement on the part of the employer to file an amended H-1B petition and bear all the costs associated with it.
A change in employment location is not the only potential change
But a change in employment location is not the only potential change that can trigger amendment obligations. Two other such changes are a change in the employee’s job description which “may affect” his or her eligibility for H-1B status or a situation where an employee “is no longer employed by the petitioner in the capacity specified in the petition.”
Changes to the job description that could affect eligibility
Regarding changes to the job description that could affect eligibility, the touchstone analysis is whether the change in job description would cause the employee no longer to meet the H-1B requirements, among other things, that the position requires at least a baccalaureate in a specialized subject area.
For example, if an H-1B employee were hired to provide engineering services and then is subsequently shifted over to a position where she is going to serve essentially as a sales manager—an occupational category that is not so clearly a “specialized occupation” and could even require a different prevailing wage-- the amendment obligation would probably be triggered.
Less clear, however, is what it means for an employee no longer to be employed in the “capacity” specified in the petition, which could conceivably affect employees shifting even within occupational categories, and not just across categories, i.e. engineering to sales management.
Example, would an engineer hired to engage in product development
For example, would an engineer hired to engage in product development be allowed to shift into an area where he would engage primarily in maintenance and repair?
The shift ostensibly would not affect the employee’s H-1B eligibility because the new position would still fall within the same Standard Occupational Classification—Engineers—and may not even affect the prevailing wage recited in the original Labor Condition Application. Yet, it could still be argued that the employee is employed in a new or different “capacity” and there hangs the potential problem.
One rule of thumb, informed by the regulations governing the permanent employment labor certification process, is that a material change of capacity is triggered if the new job description is more than 50% different from the old job description.
But then, it is unclear if Immigration would not find a material change in “capacity” even if a new job description were only 49% different from the old but the core tasks of the new position were different.
Next- What happens if an amendment obligation is triggered and an amendment is not filed?
About the author
Robert Ian Goodman, Esq. represents clients worldwide in the areas of complex commercial immigration and international and domestic commercial law. Mr. Goodman also provides general counsel services to entrepreneurs and start-up businesses and counsels foreign businesses interested in establishing a presence in the U.S. marketplace and U.S. businesses interested in expanding abroad. Mr. Goodman is principal of Goodman Immigration. He is also Special Counsel to the international boutique law firm, Sharma & DeYoung LLP ("S&D"), where he directs the firm's commercial immigration practice. He also co-chairs that firm's Technology and Emerging Companies Practice Group and is a member of S&D's Commercial Litigation and Arbitration Practice Group.Website