A question that may come up for H1B visa sponsors is how flexible the visa is, if for some reason the original foreign worker hired does not work out, needs to change location or is contracted to another company. These situations come up all the time in the real world, and both the sponsor and worker need to be prepared.
There are a few different scenarios that could arise:
- The foreign worker is ineffective or cant perform the position duties as expected
- The worker wants to transfer to a new company for another position
- The sponsor wants to contract out the worker, or transfer them to another location
The H1B Employee is Terminated
In the first example, the sponsor can terminate the worker and send them back home if they cant perform the job as expected. The problem for the sponsor is that they will lose the entire H1B visa investment and time to submit the petition. Unfortunately, the H1B visa is tied directly to the original applicant, based on their qualifications, so the visa cannot be ‘handed-off’ to another worker. A new petition will have to be submitted in the next annual lottery, for a new applicant that qualifies.
The H1B Employee Transfers to a New Job/Sponsor
In the second situation (which is common) a worker may have another job offer and want to transfer to a new sponsor /employer. Although the transfer is essentially a new petition, the original H1B visa start date will be used to determine the time remaining at the new position. The original employer has no real recourse to stop the employee, but also does not have to pay for the worker’s return home as with termination.
Changes in Job Location or Affiliated Company
The final scenario will only require that some changes or amendments are made to the LCA for the new location and affiliated company. The original H1B visa stays in effect as long as the USCIS rules and guidelines are followed, and valid documents are provided on site visits.
The H1B Visa is an Investment for a Sponsor
With all of the outcry over tightening the H1B visa criteria, one fact that gets overlooked is that US companies that sponsor H1B visas may pay up to $10,000 per foreign worker. If for any reason an H1B employee does not work out, they will lose that entire cost and have to look for a replacement (unlike when a petition is denied and the fees are refunded).
There is an increase in scrutiny and site visits for H1B sponsoring companies, to make sure the foreign employees have all of the documentation, are at the right location and are not simply contractors on short assignment. Any violation of these rules could result in revocation of the visa and deportation. For this reason, sponsors are encouraged to carefully screen and vet H1B visa applicants, double check educational degrees and work experience and respond promptly to any USCIS requests.
Willful violations could be listed as fraudulent and an abuse of the H1B visa program, with the potential to be barred from submitting future petitions. These examples underscore the cost, effort and potential pitfalls for H1B visa sponsors, and applicants should expect that their position applications will be reviewed in detail by the sponsor. It is a wise strategy to have all documentation in place prior to applying or interviewing, so that the sponsor has confidence that they are hiring a committed and qualified foreign worker.
- March 14th, 2018