Top Tip for Keeping H-1B Status: Know Your Job Description and Duties

Making sure your H-1B petition is accurate and being familiar with its details will prepare you for scrutiny from immigration officials about your H-1B employment.

As an H-1B worker, you’ll want to make sure you’re familiar with how your employer described your job in the H-1B petition, so you can maintain your immigration status. This applies at various stages of the process, including:

  • before you get an H-1B visa at the U.S. consulate or embassy abroad
  • when you change from another immigration status to H-1B status in the U.S., and
  • while you’re changing from one H-1B employer to another while the United States.

Knowing what type of work you’ll be doing and where you’ll be doing it are key to the H-1B visa.

Before You Apply for the H-1B Visa

If you’re abroad and applying for an H-1B visa at the U.S. consulate or embassy, you’ll likely need to appear for a visa interview to answer questions about your proposed work. Knowing how your employer described your job and accurately responding to questions will ensure a smooth interview.

Not knowing details of how your job was described can be a disaster. For example, if your employer told you that you’d be working as a front-end software developer, but the H-1B petition described a database administrator role, there will be a disconnect at the visa interview, which could lead the officer to deny the visa.

Similarly, if your understanding is that you’ll be working in-house, make sure the H-1B petition states that, and then be prepared to confirm that at the interview.

Making sure the details in the H-1B petition are accurate and being familiar with them will prepare you for questions from the visa officer about your proposed H-1B employment.

Maintaining H-1B Status While in the United States

Once you’re in the U.S., or if you already are here and are changing from one immigration status to another or from one H-1B employer to the next, knowing how your H-1B employer described your job is equally important, for two reasons.

First, part of the H-1B process allows the government to send an inspector to your place of work to verify that you’re actually doing the job that your employer outlined in it the H-1B petition and that you’re working at the location where your employer said you’d be working.

If the inspector shows up and finds out that either you’re doing a different job or are not working at the location described in the petition, it could lead to a revocation of the petition. That could leave you without lawful status. To avoid this, know what’s in your H-1B petition and make sure you’re complying with its terms.

Second, the H-1B regulations might require your employer to submit an amended petition if your job duties or location will change. In the past, this often was a routine situation. Under the Trump administration, however, U.S. Citizenship and Immigration Services (USCIS) sometimes uses an amended petition as an opportunity to look at both the already-approved petition and the amended petition and argue that either USCIS should have not approved the previous petition and/or is not inclined to approve the amended petition.

This leaves you and your employer in a bad situation. It could jeopardize your current H-1B status and prevent you from working in the new role. Therefore, make sure you and your employer carefully review any possible change in your job and review the details with an immigration attorney before the change happens. You then can make an informed decision about whether the change might impact your status.

Issues With Third-Party Work Locations and Keeping H-1B Status

One of the more frustrating disconnects between the “real” world and the “immigration” world is the third-party work location. A common example is the information technology consulting industry, which regularly involves assigning an IT professional to work on-site at a client location.

The real world recognizes this as normal. USCIS, on the other hand, struggles to understand how the real world works and applies a high level of scrutiny to these H-1B petitions. The concern is that the organization that submitted the H-1B petition (your employer) might not have sufficient control over you once you’re on site.

USCIS will not approve an H-1B petition where the H-1B worker will be under the exclusive direction and control of the client. If your job involves working at a third party site, make sure both that the H-1B petition confirms who your employer will be and that you will work under the direction of that employer. H-1B workers need to be in regular contact with their H-1B employer and work according to the employer’s directions, not the client’s.

To be sure, the client has a say in what gets done, but it must be the H-1B employer that has ultimate control over job duties, work hours, compensation, performance reviews, vacation approvals, and related employment matters. Not knowing who your H-1B employer is or not having regular contact with a manager at your H-1B employer can lead to problems, such as not getting a visa from the U.S. consulate or embassy or having your H-1B petition revoked after a site visit.

Make Sure You Get a Copy of Your H-1B Petition

The employer signs an attestation as part of the H-1B process, agreeing to give you a copy of the Labor Condition Application (“LCA”). The employer submits the LCA to USCIS with its H-1B petition. It contains the job title, work location and prevailing wage information. Therefore, even if you don’t have a copy of the entire H-1B petition, with a copy of the LCA, you at least know the job and location described in the H-1B petition.

Having a grasp of the details of your H-1B petition will prepare you for a visa interview and possible site visit and allow you to make an informed decision about whether to pursue a new role or work location. Be proactive and ask for a copy of your H-1B petition. While some employers view the petition as belonging to them, rather than the employee, there are two sides to the employer-employee relationship. This means without you, there’s no H-1B petition.

You and your H-1B employer are on the same team, so you both need the same information to help you maintain your status.

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