Promoting an H-1B employee is a significant milestone in their career growth within your organization. However, the process involves careful consideration of H-1B visa regulations and requirements. The H-1B visa program is designed to address workforce shortages by allowing U.S. employers to hire qualified foreign nationals for specialized positions. This program is carefully calibrated to match specific positions with specific workers. When promoting H-1B employees, it’s essential to ensure that the promotional changes align with the original H-1B visa petition.
Promoting Within the H-1B Program
Promotions within the H-1B program can be complex. You must carefully assess whether the promotion constitutes a material change. A material change is one that involves alterations in the employee’s job role, requiring different skills, educational qualifications, or a change in educational level.
Confirm Eligibility
To promote an H-1B employee, ensure they meet the following eligibility criteria:
a. Their job role remains within the specialty occupation for which their visa was initially approved.
b. They have maintained their legal status, which includes adhering to visa regulations, such as working only for the sponsoring employer and not engaging in unauthorized employment.
c. Their wage remains compliant with the prevailing wage requirements.
d. The promotion does not change the nature of their work to a degree that it no longer qualifies as a specialty occupation.
File an Amended H-1B Petition (if necessary)
If the promotion involves a significant change in job duties, location, or any other substantial modification, it may be necessary to file an amended H-1B petition. Failure to do so could lead to violations of immigration regulations. Consult with an immigration attorney to determine if an amendment is required and to help prepare the necessary documentation.
Confirm Prevailing Wage Compliance
Make sure the new salary for the promoted employee complies with the prevailing wage determination. The Department of Labor (DOL) provides guidance on how to determine the prevailing wage for the specific occupation and location. If the employee’s new wage exceeds the initial H-1B wage, you should file an H-1B amendment, and the employee’s new wage should be reflected in their Labor Condition Application (LCA).
Monitor Visa Expiration and Extensions
H-1B visas are typically granted for a maximum of six years. If the employee is approaching the six-year limit and a green card application is not in progress, you must consider their future options. Extensions beyond the six-year limit may be possible under certain circumstances, such as pending green card applications or specific exemptions.
Consider the Green Card Process
Promotion may be a significant milestone in an H-1B employee’s career and can be an ideal time to initiate the green card application process. This process can be complex and time-consuming, so it’s essential to consult with an immigration attorney to ensure that the employee is on track for permanent residency.
Employee Support
Promotion can be a stressful time for H-1B employees due to the uncertainties associated with visa regulations and processes. Offering support and resources, such as access to immigration legal counsel and clear communication about their status, can help alleviate anxiety and improve retention.
The Bottom Line
Promoting an H-1B employee involves a careful consideration of immigration laws and regulations. By ensuring that you understand the H-1B visa requirements, confirm eligibility, and take the necessary legal steps, you can successfully advance the career of your H-1B employees while remaining in compliance with U.S. immigration laws. Remember that immigration laws and regulations can change, so it’s a good idea to consult with immigration professionals and legal experts to stay up to date with any new developments that may impact your employees.