Can H-1B worker accept switch from full-time to part-time?

Reducing an employee's hours is permitted, if the employer receives government approval of the amendment.

Question

We sponsored one of our employees for an H-1B visa. Our petition and his status are valid for another two years. With our business down, we're transitioning his group to part-time status of 20 hours per week. The others in the group are U.S. citizens. Is there anything in particular we need to do for the employee with the H-1B visa? Will he be allowed to stay on if he's working only part-time?

Answer

You need to submit an amended H-1B petition to U.S. Citizenship and Immigration Services (USCIS) to reflect the change from full-time to part-time. Otherwise, you must continue to pay the H-1B employee the salary you stated in your H-1B petition.

H-1B petitions may be for full- or part-time work. There is not a required minimum number of hours. It's also possible for an employee to have multiple H-1B employers, as long as each employer submits an H-1B petition.

If you don't submit an amended H-1B petition, however, USCIS could find out. The two likely ways it might do so are through its post-approval audits or if the H-1B worker complains to the Department of Labor.

You may recall that when you submitted your H-1B petition, you paid a $500 fraud detection and prevention fee. Your signature also confirmed that you agree to USCIS audits of your petition. USCIS uses the $500 fee it collects to fund its audit efforts.

USCIS typically starts the audit process, either randomly or following a complaint, by sending a contract investigator to your facility. The investigator gathers information about your business and the H-1B worker and then reports back to USCIS. If there are discrepancies between what you stated in your H-1B petition and what you told the investigator, USCIS could seek to revoke your H-1B petition and enlist the Department of Labor to enforce the wage obligation.

The complaint-driven process likely would arise from the H-1B employee informing the Department of Labor (DOL), perhaps if he were unhappy about the part-time arrangement. DOL would check with USCIS to determine whether you submitted an amended H-1B petition. If not, DOL would require you to pay back wages.

Although there is a $325 filing fee (as of 2013) for the amended H-1B petition, it's a small amount to pay when compared to what you could end up paying in back wages if you don’t amend the petition.

Talk to a Lawyer

Need a lawyer? Start here.

How it Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you
FEATURED LISTINGS FROM NOLO
Swipe to view more
NEED IMMIGRATION HELP ?

Talk to an Immigration attorney.

We've helped 85 clients find attorneys today.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you