The USCIS is extremely cautious when it comes to evaluating fraud in H1B visa applicants. A petitioner must be vigilant in providing documentation and keep their H1B employee’s file handy at the H1B worksite at all times. When it comes to the legal aspect of the responsibility of the H1B employer, beyond responsibility for filing the H1B, the employer must also submit a Labor Condition Application (LCA) to the U.S. Department of Labor and satisfy the following attestations.
- First the employer must prove that they will pay the prevailing wage for that particular field. A prevailing wage is determined by the National Prevailing Wage Center (NPWC) according to job title, description of the position, educational and work experience requirements, job location, as well as type of employer. This wage is defined as the average of wages paid to professionals similarly employed in the same field.
- Secondly, working conditions for the prospective employee will be afforded on the same basis, and according to the same criteria as U.S. workers. Adversely, the foreign employee will not affect the working conditions or opportunities of U.S. workers.
- The third attestation requires the employer to prove that at the time of filing, there is no current labor dispute in the future place of employment.
- The fourth and final attestations provides that the employer will notify workers employed in the field correlating with the position of the non-immigrant worker of the LCA filing. The actual LCA must be submitted with the H1B application, along with detailed documentation that proves educational history.
These elements must all help to prove 3 things:
1. the employer has a legitimate needs for a “specialty occupation” worker
2. that the position offered is indeed a specialty occupation, and
3. finally that the prospective employee is qualified for the position.
A filing fee in H1B petitions goes towards fraud investigations. USCIS has examiners that will conduct site investigations to make sure the employer and employee are performing in a manner that was described in the H1B petition.
H1b Changing Work Location
If you are currently on an H1B visa and your current employer is considering moving the work location to a different place. Can the H1b worker relocate with the company under the current H1B visa? Does a new application is needed? What if your H1B employer wants you to frequently work overseas?
H1B workers – Change of work site within the U.S.
The answer to the first question of whether an H1B Visa holder is permitted to move with their employer is yes. As always in law, there is a but. The general rule is an H1B visa holder must work at the location listed on their Labor Condition Application (LCA). If the employer wants you to work at a location other than the one listed on the LCA, the employer must notify the United States Citizenship and Immigration Service (USCIS) as well as file a new Labor Condition Application with the Department of Labor. An exception to this would generally be if the new work place is within the area of intended employment listed on the Labor Condition Application, for example, an H1B employee’s job duties require substantial or constant travel.
H1B workers – Change of work site overseas
The second question of whether an employee can perform work for an employer overseas is it depends. For starters, there are no limits in the amount of time an H1B holder can spend outside of the United States while the H1B Visa is valid. If you are travelling within the scope of duties listed on your H1B Visa application, then the USCIS may be less suspicious in whether you are still working for the H1B employer. As mentioned above, you can travel outside of the United States for as long as your employer permits you without terminating your employment. However, if you are not travelling on business outside of the United States for an extended period keep in mind that it may raise questions with the USCIS as well as Customs Border Patrol when re-entering the US in whether you are still working for the H1B employer.