TOI had reported that this typically meant an modification of their H-1B petitions. No such requirement arose, provided that the employees who had been working from residence did so inside commuting distance of their office – this usually was not the case.
“Now as employees (including those on H-1B visas) are being welcomed into work premises, once again sponsoring employers will need to ensure that they remain in compliance with the Labour Condition Application (LCA) requirements and they need to check whether an H-1B amendment is warranted,” says Snehal Batra, managing lawyer with NPZ Law Group.
Ashwin Sharma, a Florida primarily based immigration lawyer explains to TOI, “In general, if the sponsoring employer previously obtained a certified LCA for the physical workspace at which the H-1B worker is resuming work; or if the previous LCA already included the Metropolitan Statistical Area (MSA) covering the H-1B worker’s home job site, then the H-1B worker’s resumption of employment at the physical workspace would be quite straight forward.”
In such instances, the H-1B employee might successfully resume such employment with minimal to no effort on the half of the H-1B sponsoring employer, provides Sharma.
Batra factors out that regardless of the Covid-19 pandemic, the US Citizenship and Immigration Services (USCIS) didn’t revise the LCA compliance necessities. When there’s a materials change within the H-1B employment, a brand new LCA is required to be filed, necessitating submitting of an modification to the H-1B software. The sponsoring employer is required to make attestations akin to these relating to wages, working situations, phrases of employment, place of employment, to title just a few.
“Material change includes a change in worksite location, a significant change in job duties or a change in occupational classification, or a reduction in hours from full-time to part-time or a reduction in salary,” states Batra.
Rajiv S Khanna, managing lawyer at Immigration.com says, “H-1B regulations require that whenever there is a ‘substantial change’ in the job, a formal amendment must be filed with the USCIS. Any relocation of an employee farther than approximately 50 miles is included within the definition of substantial change. Unfortunately, an amendment takes precisely the same amount of paperwork as a new H1B or a change of employer does. Further, an amendment is treated by the USCIS as an invitation to examine the already decided case anew. This adds on to the uncertainty of the outcome and creates an additional burden on the employers who are already struggling with the pandemic’s economic effects.”
Sharma cautions that if a brand new LCA is required to assign the H-1B employee to a brand new bodily workspace, then the sponsoring employer should make sure that the brand new LCA together with the amended H-1B petition are well timed filed with the USCIS earlier than the efficient date of any bodily worksite change.
“When the pandemic hit, for those cases where clients needed to file a new LCA, we listed all possible anticipated work locations so that employers would not be required to file a second LCA and H-1B amendment when employees returned to work,” says Batra.
Immigration attorneys level out that as well as to a change within the location, modifications akin to duties of the employees, promotions, change in salaries, may also want to be examined, so see whether or not an amended H-1B petition is required.
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