Company and H-1B Worker must comply with the following provisions during the employment of H-1B Worker under the terms of H-1B status.

• Once H-1B visa petition is approved for H-1B Worker, Company must read the approval notice carefully to see if the approval provides Company with the authorization to begin employing H-1B Worker. If such authorization is granted, Company must ask H-1B Worker to complete Form I-9, before the employment is to begin. Company is required to keep a copy of the H-1B approval notice (Form I-797), along with whatever additional document(s) as required by Form I-9.

• If the H-1B approval notice requires H-1B Worker to first apply for an H-1B visa abroad and be admitted with said visa before the employment can be authorized, Company cannot employ H-1B Worker until s/he obtains an H-1B visa and is admitted to the U.S. pursuant to that visa. Once H-1B Worker has arrived in the U.S., Company must begin H-1B Worker's employment within 30 days from the date of arrival. Make sure to ask H-1B Worker to complete Form I-9, before employing him/her. Company must examine, verify and maintain a photocopy of H-1B Worker's I-94 and visa stamp page. Company must keep in its I-9 file a photocopy of the front and back of I-94, visa stamp page, and any other document as required by Form I-9. (Company must review instructions for I-9 to see if there is anything else is needed).

• If H-1B Worker obtains his/her H-1B status through change of status in the U.S., or the existing H-1B visa has or is expired or is no longer valid, and H-1B Worker wishes to travel abroad, s/he must obtain a new H-1B visa from US consulate before returning to the U.S. Company must provide the following documents to the H-1B Worker to ensure his/her successful application for an H-1B visa.

  • The original H-1B approval notice (Form I-797) (Make sure Company retrieve the original of the approval notice from H-1B Worker after his/her H-1B visa application. Notwithstanding this, Company is required to keep a copy of the H-1B approval notice in its I-9 file);
  • A complete copy of the visa petition;
  • A letter confirming H-1B Worker's employment status with the company; and
  • Most recent pay statements, if readily available.

• IMPORTANT!! Whenever H-1B Worker travels abroad, s/he will need to go through inspection at the time of returning to the U.S. The Department of Homeland Security (DHS) will issue a new I-94 to H-1B Worker to reflect his/her legal status as well as the duration of stay. Under certain circumstances, DHS has known to issue I-94 with shorter period of validity than the validity of the visa on H-1B Worker's passport (e.g. passport expiring before the expiration of the visa). It is highly recommended that H-1B Worker carefully review the stamp that the immigration inspector has placed on the I-94 before leaving the inspection station. If the mistake or discrepancy is caught immediately, then it can be corrected. Let's say the DHS refuses to correct the validity date or H-1B Worker simply fails to catch the discrepancy, then the validity of that I-94 controls, which means that H-1B Worker can only remain and work in the U.S. no longer than the date as given.

• Company's authorization to employ H-1B Worker is only valid as long as H-1B Worker's I-94 remains unexpired. H-1B Worker's legal right to work for your company is based on the validity of I-94, not the visa itself. When your company completes Form I-9, make sure you list the expiration of I-94, instead of the expiration of the visa, as the validity of the employment authorization. Your company should develop a policy to ask H-1B Worker to provide the most recent I-94 if and whenever s/he returns to the U.S. after traveling abroad. Verify the most recent I-94 with the information on the I-9 file for H-1B Worker.

• H-1B Worker must be aware of his/her own legal status at all time. The legal right to remain in the U.S. is governed by the validity of I-94. H-1B Worker can only work for Company pursuant to the terms and conditions of the approved petition. H-1B Worker must bring to the Company's attention if his/her I-94 will expire within 7 months so to give Company sufficient time to prepare for filing an extension petition before I-94 is expired (failure to file extension petition before I-94 expires will render H-1B Worker out of status). H-1B Worker and Company are hereby advised that, once the extension petition is filed before the expiration of I-94, H-1B Worker may continue working for an additional 240 days (provided that the extension petition was timely filed before the expiration of I-94). Such authorization shall be subject to any conditions and limitations noted on the initial authorization. However, if the district director or service center director adjudicates the application prior to the expiration of this 240 day period and denies the application for extension of stay, the employment authorization under this paragraph shall automatically terminate upon notification of the denial decision. Moreover, if H-1B extension is not granted by the end of that 240 day period, H-1B Worker must be removed from employment.

• If H-1B Worker's I-94 has expired and no extension petition or change of status application has been filed, H-1B Worker would begin to accrue unlawful presence. If H-1B Worker accrues 180 days of unlawful presence and then departs from the U.S. thereafter, H-1B Worker will become inadmissible for 3 years. If H-1B Worker accrues 1 year of unlawful presence and then departs from the U.S., there will be a 10 year bar.

• 8. Company must file an extension petition with the USCIS to extend H-1B Worker's H-1B visa status no earlier than 6 months before the expiration of H-1B Worker's most recent I-94. Company is hereby advised that an H-1B Worker is eligible to receive extension of H-1B status for an aggregate period of stay of up to six years. At the end of six year period, H-1B Worker will no longer be eligible to extend his/her H-1B status, unless one of the following conditions exists:

  • H-1B Worker has an employment based permanent residency process (e.g. labor certification application or I-140 visa petition filed) filed and pending for at least 365 days prior to reaching six year limit. Under this scenario, H-1B Worker is eligible to extend his/her H-1B for one year, per each extension request; or
  • H-1B Worker has an I-140 visa petition approved but because of the lack of visa number, H-1B Worker is unable to file his/her I-485 application to adjust status or consular processing. In this case, H-1B Worker is eligible to extend his/her H-1B for a three year period.
  
  If either of the above scenarios does not apply, the H-1B Worker must leave the U.S. and remain abroad for at least 12 months before s/he is eligible to re-apply for H-1B visa.

• Company guarantees that it has sufficient financial resources to pay H-1B Worker for the duration of employment under the terms of this petition.

• Company agrees to pay reasonable transportation cost for sending H-1B Worker to his/her home country in the event that Company terminates the employment before the authorized period of stay as approved by the US Citizenship and Immigration Services (USCIS).

• Company agrees to pay H-1B Worker at the rate as required by the approved petition, even if H-1B Worker is being placed in a nonproductive status (i.e. benching). Failure to pay H-1B Worker at the rate that is required by the approved petition will constitute direct violation of immigration law. The Company may face civil and/or criminal penalties, and complaint/lawsuit from H-1B Worker. H-1B Worker will be out of status if s/he does not receive the rate of pay as guaranteed by Company.

• Company agrees to immediately notify the USCIS if H-1B Worker is no longer employed by Company. It is simply not enough to terminate H-1B Worker internally without notifying the USCIS. Notwithstanding the termination of H-1B Worker's employment, Company is required to continue paying H-1B Worker the proffered wage rate until at such time when Company notifies the USCIS of the termination.

• Company understands that it must file an amended petition with the USCIS and/or US Department of Labor, if there is a material change to H-1B Worker's employment while under H-1B status. Material changes include, but are not limited to: reduction in the hours worked, significant changes in job duties, reduction in wages (excluding regularly scheduled merit increases), any change in location of the position to an unspecific jobsite (i.e. jobsites that have not been identified in the original petition and certified ETA9035), or transfer of H-1B Worker to and/or from another entity (with a different FEIN number), even if the entity is affiliated or related to Company. You should consult with an immigration attorney immediately before any material change in the H-1B Worker's employment arises. Continued employment of H-1B Worker, without filing an amended petition, after a material change has occurred will trigger a substantive violation of the terms and conditions of the approved petition, hence constituting illegal employment.

• Company must maintain public access file (PAF) in connection with its H-1B filing for a minimum of one year after the end date of the authorized period of stay or the date of employment termination, whichever occurs earlier. The PAF must contain the following information:

  • A copy of the certified ETA9035 and ETA9035CP;
  • Wage memorandum, explaining that H-1B Worker's wage offer is no less than the prevailing wage rate for the position or the actual wage rate paid to other similarly employed workers, which is higher;
  • Prevailing Wage Determination and Similarly employed worker worksheet;
  • Summary of employee benefits; and
  • Completed internal posting notices.

• If corporate merger or acquisition occurs, successor entity may not be required to file an amended petition and/or new ETA9035 (LCA) if the following conditions exist: (Must consult with an immigration attorney before making any decision with respect to H-1B Worker's employment if Company will undergo merger and/or acquisition).

  • The successor entity, PRIOR TO the continued employment of H-1B Worker, agrees to assume the predecessor entity's obligations and liabilities under the LCA filed by the predecessor. The successor entity must include a sworn statement by a responsible official attesting that it accepts all obligations, liabilities and undertakings under the LCAs filed by the predecessor employing entity, together with a list of each affected LCAs and the dates of certification, and a description of the actual wage system and FIN of the new employing entity; AND
  • There is no material change to the underlying terms and conditions of the H-1B Worker's employment (job location, title, salary, duties and responsibilities, etc. remain the same).