When it comes to promoting an H-1B employee, it’s important to understand the basics. First off, the H-1B visa program is one that allows employers to sponsor nonimmigrant alien employees in specialized fields, such as technology. For companies that are unable to fill their positions with selections from the United States workforce, this program allows the hire of qualified foreign nationals to make up the shortage.
The H-1B visa program is delicately calibrated, and it focuses on specific positions for a specific worker. As such, it’s critical your H-1B visa petitions match the positions filled by your H-1B workers. Promotions, therefore, can be an issue.
Promoting Within the H-1B Program
While the H-1B visa is versatile and can be transferred from one employer to another (with the appropriate petition filings), the promotion of an H-1B employee is often a complicated matter. If you’re ready to promote an H-1B worker, you should carefully consider the specifics related to whether that promotion reaches the level of a material change. A material change is one in which the employee’s promotional position requires a different skill set or educational focus, and/or educational level.
Labor Condition Application
A Labor Condition Application for Nonimmigrant Workers (LCA) is part of the petition filing process for every H-1B visa. A promotion that requires an employee to move to a location that’s not covered in the original LCA also necessitates an amended H-1B petition. Once the amended petition is properly filed, however, you need not wait for the USCIS final decision before transferring the H-1B employee to the new location.
No Need to Amend
As seen in the policy memo issued following the Matter of Simeio Solutions, LLC, there are several situations in which it isn’t necessary to amend an employee’s H-1B visa petition, and here are a select few:
- The promotion is routine and requires both the same skill set and the same level of education.
- An employee is transferred to a different branch of your company – that’s not a new entity within your organization.
- An H-1B employee temporarily visits another business or client location.
Ultimately, the specifics of the LCA filed for each H-1B visa worker must coincide with the specifics of his or her employment situation. If the terms and conditions of the original LCA don’t apply to a new position, an amendment is in order. Because there is no cost associated with amending an H-1B petition for the same beneficiary and because it’s always in your best interest to err on the side of caution, be scrupulous when it comes to promoting your H-1B employees.
H-1B Worker Promotions & Green Cards
You can sponsor an H-1B worker in pursuit of his or her green card (Permanent Resident Card), which – if obtained – will allow the employee to work and live in the United States permanently. An H-1B visa promotion, however, can significantly affect this process.
If your employee has already applied for a green card, it’s imperative that the proffered job promotion remains within the purview of that application. If not, the application may be denied by the USCIS. If your employee does need to file a new green card application (because of the promotion), he or she can request that the original application’s priority date be retained.
It’s only natural to want to promote your most valuable H-1B workers. It’s also important, however, to ensure that such promotions are well within the complicated parameters of the H-1B visa program. Staying abreast of the process and the attendant rules will definitely ease the situation when the time comes.
For more information regarding H-1Bs, litigation FAQs, or helpful tips, check out this Bridge page.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a Bridge-affiliated partner attorney or another qualified legal professional.