Employing Nonimmigrant Workers: What Are Your Ongoing Legal Obligations?
Under U.S. immigration law, a “nonimmigrant” is someone who has been admitted to the U.S. for a temporary stay to engage in a particular type of activity. A number of nonimmigrant classifications or visa types authorize employment of various kinds, as detailed in "Employers: Sponsoring Immigrants for Work Visas or Green Cards.”
The general fact to notice here, though, is that the nonimmigrant classifications are quite specific about the kind of work authorized. In this, a nonimmigrant worker differs from a foreign worker with a green card or an Employment Authorization Document (EAD), who can work for any employer in any kind of job. A nonimmigrant worker can work only for the petitioning employer and can perform only the type of work described in the petition.
Thus, so long as you employ someone in nonimmigrant status, your central obligation is to maintain that worker in the kind of employment for which you sought his or her services when you filed the paperwork on the worker’s behalf. But, of course, the needs of your business might change in ways you couldn’t have anticipated when you originally filed the paperwork and brought the nonimmigrant worker onto your payroll. What are your ongoing obligations as the employer of a nonimmigrant worker?
Informing USCIS of Changes in the Worker’s Employment
Employers can make changes to the terms of nonimmigrant workers’ employment, so long as those changes don’t take the employment outside the bounds of the relevant nonimmigrant classification. An E-2 foreign specialty cook might be moved from one restaurant outlet to another, for instance, but couldn’t be shifted to waiting tables.
Employers must inform USCIS of material changes in the nonimmigrant worker’s employment. Unfortunately, immigration law does not define “material change.” In practice, however, common material changes include a change of work location, significant change in job duties, or a significant change in the employee’s hours. A change in employer ownership or corporate structure may also be considered a material change.
If you do make a material change to the worker’s employment, you must inform USCIS by filing an amended I-129 petition along with an explanation of the change. The amended petition should be filed as soon as you know the change will take place. If you are unsure whether USCIS would consider a change material, file an amended petition (or consult an immigration attorney) just to be safe. If USCIS finds out about the change and thinks you should have filed an amended petition, you could face penalties.
Extending a Nonimmigrant Worker’s Term of Employment
Obviously, you can’t continue to employ a nonimmigrant worker beyond the expiration of the status that allows him or her to work. Most nonimmigrant classifications can be extended, however, with the length of the extension and the number of extensions allowed varying according to the classification. What may come as a surprise is that it’s the employer and not the employee who must file extension papers. An extension filed on Form I-129 actually serves both to renew your petition and also to request an extension of stay for your employee.
What to Do Upon Terminating a Nonimmigrant Worker
Early termination happens when the worker quits or the employer fires or lays off the worker before the worker's nonimmigrant status has expired. Early termination of the worker’s employment is always considered a material change. If a nonimmigrant worker’s employment terminates early you, as the employer, must inform USCIS of this change.
Workplace Protections for Nonimmigrant Workers
As a general rule, you cannot treat nonimmigrant workers differently than U.S. citizen or permanent resident workers. All the usual workplace protections apply to nonimmigrant workers, including antidiscrimination, occupational safety, and wage and hour laws.
However, the law prohibiting discrimination based on citizenship status does not apply to nonimmigrant workers. Thus, you can take a nonimmigrant worker’s immigration status into account in employment decisions without running afoul of this law. You are not discriminating, for example, if you decide not to hire a job applicant who is in a nonimmigrant status because you don’t want to take up the obligations of employing a nonimmigrant.