Congratulations! Now, after you have worked hard and deserved to be promoted while on H-1B status, you probably want to know what comes next.
One of the main things to learn is if a “material change” has taken place to determine if an action needs to be taken and what these steps are.
But you probably have more dilemmas, so let’s dive in and see how your promotion affects your H1B status.
You Got the Promotion on H1B?
It’s natural that the employer wants to award and promote its most valuable H1B workers. But, it is also important to ensure that such a case is well done and aligned to the complicated parameters of the H-1B visa.
When it comes to promoting an H-1B visa holder, it’s essential to understand how it functions and in what way it can be done according to U.S. immigration law.
H-1B Overview
The H-1B visa program allows U.S. employers to sponsor nonimmigrant alien employees in specialized fields. For companies that cannot fill open positions with selections from the U.S. workforce, the approved H-1B petition allows them to hire qualified foreign nationals and, in this way, make up for the shortage of skilled domestic workers.
The H-1B visa program focuses on specific positions for a particular worker. As such, H-1B visa petitions must match the roles filled by the sponsoring employee on behalf of the H-1B worker.
H-1B visa has many benefits, and the flexibility is only one of them that makes it so popular. The high demand for this visa is also influenced by its portability and the ability to work toward a green card. Still, promotions can be an issue.
If you have gotten or are scheduled to get an H-1B promotion within the company that sponsored your H-1B petition, you are at the right place, but first, let’s remind you what H1B visa is.
Who is Eligible?
Since the immigration process is delicate, you need to be well aware of all the requirements and specifications before making any significant changes to your job position while working on H-1B.
Probably you are already aware that the H-1B is a nonimmigrant visa designed for foreign workers in specialty occupations. Current regulations state that your position must require a bachelor’s degree and obtain such a degree to qualify for an H-1B position within the U.S. company.
If you meet eligibility requirements, your original petitioning employer must file an I-129 petition on your behalf. If not subject to cap-exempt, your petition will enter into the annual H-1B lottery. If your petition is selected and approved, you’ll be issued an H-1B visa.
H-1B Portability
The H-1B allows you to work full or part-time or even work for several different employers. Also, it allows you to transfer your status from one employer to another. However, your new employer will need to file a new petition on your behalf. But, this time, you don’t have to worry about the lottery. Since you have been counted toward the cap, you can’t be counted again and enter the lottery.
On the other hand, if you get an H-1B promotion within the same company or under the same employer or are just transferred from one location to another, you may need to take a different action.
Promoting Within the H-1B Program
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Due to the H-1B visa portability and the ability to be transferred from one employer to another, promoting an H-1B employee may be a complicated process. If your employer wants to promote you, there are certain specifics to be careful about whether your promotion relates to a material change. A material change is when the employee’s promotional position requires a different skill set or educational focus and/or educational level.
Material Change
So, as you obtained your H-1B visa for the specific position you applied for within the U.S. company, with the specific US employer who sponsored your petition.
What happens if your position has changed? In case of any material change in the terms and conditions of an alien’s employment, filing amended petitions is required each time. And before any change in employment is made, you will have to wait for the U.S. Citizenship and Immigration Services USCIS to make the final decision about the amended petition.
Amended or New Petition
The Federal Regulations provide that the petitioner files an amended or new petition in case of any material changes regarding the terms and conditions of employment or academic training or the alien’s eligibility as specified in the original approved petition.
As we mentioned previously, in case of such changes when new or amended petition must accompany a fee and a new labor condition application (LCA). This includes job title and job duties change when an employer promotes its H-1B worker.
Still, not every promotion requires an amended petition. The amended petition is not required in the cases of a promotion that involves a job title change or a salary increase unless there has been a significant change in job duties. But we will talk about it later.
USCIS Guidance
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In 2015, USCIS decided to extend the definition of “material change in the terms and conditions of employment.” The new definition includes the rule that when an H-1B worker changes a work location to a geographical area outside the metropolitan statistical area or area of intended employment requiring a corresponding LCA, it is a material change. In other words, there are material changes in the terms and conditions of employment each time an H-1B worker changes job location to a new place, requiring filing a new LCA.
Before 2015, it was enough to place a newly certified LCA at the new job location, but now it must be filed a whole amended H-1B petition before placing the H-1B employee at a new worksite.
In this process, you should keep in mind the H-1B visa holder must wait until the employer files the H-1B amendment with USCIS and get the approval before the H-1B worker starts working under the new terms and conditions of employment.
Amended Petition Required
The amended H-1B petition is required when:
- The employee’s place of work changes to a worksite location outside the metropolitan statistical area (MSA) or “area of intended employment.”
- The employee’s place of employment changes to a worksite location that requires the employer obtains approval for a new Labor Condition Application.
- There have been changes to the terms and conditions of the worker’s employment (including the job role at a new location, not within the same MSA).
Labor Condition Application (LCA)
If employee’s job duties are no longer aligned with what the first LCA states, the employer must file the Labor Condition Application (LCA) and an amendment for the H-1B promotion.
Also, we highly recommend you to get the H-1B amendment if the H-1B promotion means that employees will be transferred permanently to other worksite locations that have a differing prevailing wage than what was initially stated on the LCA.
A LCA is a part of the petition filing process for every H-1B visa. A promotion requiring an employee to move to a location not covered in the original LCA also requires an amended H-1B petition.
However, once the amended petition is filed correctly, your employer doesn’t have to wait for the USCIS final decision before transferring you to the new location.
Violation of the USCIS Guidance
If the sponsoring employer allows the H-1B employee to work under the new terms and conditions before an amended H-1B is filed, USCIS may either deny the petition or approve it for consular processing only due to consideration that the H-1B employee has not maintained the valid nonimmigrant status.
Also, some other consequences can arise for such an employer and employee, as well, such as finding that the H-1B visa holder violated a status, the inability to subsequently request an H-1B extension or a change of status, etc.
This is why it is highly important to seek professional advice from an experienced immigration attorney who can help you navigate your case toward the desired outcome.
When Amended Petitions Are Not Required?
H-1B amended petition is sometimes incorrectly filed when employers are unsure whether material change occurs.
Here are some cases in which the sponsoring employer would not need to file an amended petition:
- The promotion still requires the same duties, skills and education- the beneficiary’s employment remain the same
- Worker’s salary has increased along with the promotion and within the same occupation
- The company has changed the name, but the legal entity operates in the same way (speak with the lawyer in this case since filing an amendment is sometimes recommended)
- A company goes through corporate restructuring, an acquisition or a merger, change in ownership structure, and the new corporate entity agrees to the same H-1B terms.
- The employee has been transferred from the current branch to a different one with the new worksite location. (Speak with the lawyer if you are transferred to a new entity and the new entity becomes your employer)
- H-1B visa holder temporarily visits a new location or client location different from the original location specified in your LCA.
How H-1B Promotion Affects Your Green Card?
As we mentioned earlier, an H-1B visa has many benefits, and one of the greatest is that you can pursue a green card.
However, once you have begun applying for permanent residence status, what happens with your H-1B visa will also affect your green card.
If your current H-1B employer wishes to sponsor you for the green card, you should consider the green card requirements before making any job role changes. This mainly includes accepting an H-1B promotion.
If your new position doesn’t fit the parameters for your green card, USCIS may deny your petition.
If you get a promotion that makes a material change to your H-1B status, you should seek help from an immigration attorney to decide if a new I-140 should be filed for your green card.
How An Experienced Immigration Attorney Can Help You?
Getting the H1B and maintaining the status is not an easy task. Only one wrong step can cost you loosing it.
No matter if you need help in filing H1B petition, amended petition, or you want to work toward the green card
Your attorney will be able to advise you and help you handle scenarios that warrant an amendment and those that do not. Our immigration attorneys can help you navigate the case.
Schedule a personal consultation with Attorney Richard Herman by calling 1-216-696-6170, or by booking online. Consultations can be conducted by zoom, skype, whatsapp, facetime, or in-office.
