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Common Employer Questions about H-1B Workers

Writer's picture: JohnDuttonLawJohnDuttonLaw

Updated: Dec 11, 2024


Can an H-1B Employee Work Part-Time?

Under H-1B regulations, employers are not allowed to place a worker in unpaid, non-productive status when there’s no client assignment or if the employee cannot work due to issues like the lack of a permit or license. However, employers may retain workers in non-productive status if they continue paying them. In some cases, employers can also file an amendment to reduce the worker’s hours from full-time to part-time.

An H-1B employee may take unpaid leave and remain in an unproductive status if the leave is unrelated to employment, such as for personal reasons like traveling or caring for an ill relative. Additionally, sick leave and maternity leave are allowed if such leave is consistent with the employer's benefits plan or legal requirements, such as the Family and Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA).

Can I Terminate an H-1B Employee?

Yes, but there are specific guidelines to follow. If an employer wishes to terminate an H-1B worker, they must notify both the employee and USCIS that employment has ended and request revocation of the I-129 petition. Failure to do so could result in liability for back wages. Moreover, if the employee is dismissed before the end of the authorized employment period, the employer is responsible for covering the reasonable costs of the employee’s return transportation to their last place of residence.

Can I Change an H-1B Employee’s Job Title or Duties Without Notifying USCIS?

It depends on whether the change is considered "material." Minor adjustments, such as changes in job duties, promotions within the same occupation (without altering the required qualifications), or salary increases, do not generally require a new or amended petition. However, significant changes in the job may require further action.

Can I Transfer My H-1B Employee to a New Job Location?

Job location changes can be more complex. If the new location requires a new Labor Condition Application (LCA) to be certified with the U.S. Department of Homeland Security, this is considered a material change and may affect the employee’s H-1B status. In such cases, the employer must file an amended or new H-1B petition along with the appropriate LCA.

However, the following scenarios do not typically require filing an amended petition:

  • Relocation within the same area of intended employment: If the employee moves to a new job site within the same region, a new LCA is not usually required, but the original LCA must be posted at the new location.
  • Short-term placements: An H-1B worker may be placed at a new site for up to 30 days (and in some cases up to 60 days) without needing a new LCA, provided the employee is still based at their "home" worksite.
  • Non-worksite locations: If the employee is working at a non-worksite location with no material changes to their employment, no new or amended petition is necessary.

Can H-1B Employees Work for Multiple Employers?

Yes, an H-1B employee can work for multiple employers, but each employer must file a separate H-1B petition on the worker's behalf. The worker cannot begin employment with the second or subsequent employer until that employer's petition has been approved by USCIS, or the employee has received receipt notice from USCIS for concurrent employment.

What Happens if My H-1B Employee’s Visa Expires?

If the employee's visa is nearing expiration, the employer can file for an extension, provided that the total H-1B employment period, including extensions, does not exceed six years. If the extension is timely filed before the visa expires, the employee can continue working for up to 240 days while waiting for the decision. However, if the H-1B status has already expired and no extension was filed, the employee must stop working immediately and leave the U.S., or potentially face issues reentering or adjusting status later.

What is the Maximum Duration of an H-1B Visa?

The maximum duration of H-1B status is typically six years, divided into an initial three-year period and a possible three-year extension. After six years, the worker must leave the U.S. for at least one year before reapplying for H-1B status. However, exceptions exist for individuals with pending employment-based green card applications, which may allow for additional extensions beyond the six-year limit under the American Competitiveness in the 21st Century Act (AC21).

Can an H-1B Employee Apply for a Green Card?

Yes, H-1B employees can apply for permanent residency (a green card) through an employment-based petition. H-1B status is considered "dual intent," meaning the employee can hold temporary H-1B status while pursuing permanent residency without jeopardizing their visa status.

What Happens If the H-1B Employee Changes Employers?

If the employee is changing employers, the new employer must file a new H-1B petition (referred to as an H-1B transfer). The employee may start working for the new employer once the new petition has been filed, even before it is approved, provided they are in valid H-1B status and have received the petition receipt notice from USCIS.

Are There Any Wage Requirements for H-1B Workers?

Yes, employers must pay H-1B workers at least the prevailing wage for the job in the specific geographic location, as determined by the U.S. Department of Labor. The wage should be consistent with the employer's payment to other employees in similar roles and must be disclosed in the Labor Condition Application (LCA).
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