Many of our clients are currently going through review season with their employees. With reviews often comes conversations on compensation changes, promotion opportunities, and reconfiguration of roles. Growth and change are an inevitable part of business.
While we never want to stifle growth, it is important to remember the Employer is responsible to the federal government for maintaining compliance and the promised terms and conditions of employment as submitted to CBP, USCIS, DOL, DOS for various work visas.
For example, if you brought on a Software Engineer on H-1B, you (the Employer) are responsible for maintaining the terms and conditions of employment promised on the Labor Condition Application and the I-129 petition filed regarding this worker. If you identify changes that need to be made to the employment, it is best and safest practice to have a Material Change Analysis done on any changes to employment before making the change. This would include an upwards change in compensation, a change from Software Engineer I to II, office location move across the same city, adding supervisory duties, etc.
The Material Change Analysis compares all relevant factors to employment against the filed petition/LCA and desirable change. Your attorneys will conduct an analysis of whether a change can/should be made without an amendment or only if an amendment is filed with DOL/USCIS. The factors to consider are changes in:
Worksite(s)
Job Title
Salary
Supervisory Duties
Minimum Education Requirement
Minimum Experience Requirement
DOL Standard Occupational Classification
Job Duties
Mentoring Requirements
The analysis is looking for whether a change in any of the above factors are material to the employment. For worksites, for instance, there are specific regulations on when a move becomes material. However, a job title, on its own, is not necessarily material, but may be a strong indicator of a change in underlying duties or responsibility for the worker - a seemingly innocuous change may actually open the door to further discussion.
Recommendations from a Material Change Analysis may range from simply updating the Public Access File of the change, reposting the LCA at a new worksite, or filing a new LCA and new petition for amendment with USCIS.
Importantly, no change should be made until and unless a Material Change Analysis has occurred and recommendations are considered. If a change to the employment is material and compliance measures are not taken, the employee could fall out of status and the employer could be fined or even debarred from filing any other work visas.
As always, I recommend taking H-1B training to build and sharpen your tools to understand your responsibilities holding work visas for international personnel. Training is offered at Corporate Immigration Compliance Institute: LINK
Business Immigration Lawyer
The information on this website is for general information purposes only, it is not legal advice applicable to a specific situation. Viewing it does not create an attorney-client relationship.
