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.

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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.

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