Employees are the building blocks of any successful and prosperous company. Such successful companies know that they should hold on to their employees during hard times as their employees held the company together during good times. As a Columbus, Ohio immigration lawyer, I received a call from a client recently informing that he has recently requested a 10% wage reduction from all of his employees. Since the company was unable to do so for the H1B visa employees, as the law requires the employer to pay H1B holders the higher of either prevailing wages or actual wages, the employer turned to me for advice. I advised the employer to convert the H1b visa holders to part time and re-petition the USCIS to reduce their hours, and hence, their compensation.
Employers are able to employ foreign nationals in full or part time positions. Thus, this is powerful tool that can be utilized by employers who are concerned about keeping their staff during financial challenges it is facing. For instance, employers may be able to concurrently petition H1b visa employees who hold full time H1b employment with other employers, in a part time H1B visa in their own company. The H-1B visa is concurrent in the sense that the employee has an H1B visa status with more than one employer simultaneously.
Alternatively, the employer could petition an H1b visa employee to work for it on part time basis who would not not necessarily maintain full time H1B visa status elsewhere . In essence this would become a non-concurrent part time H1b visa petition. Example of this include converting an H-1B visa employee within the same company from full time to part time H-1B status or or by transferring an H-1B visa employee from full time status from another company to part time H-1B visa status into the company.
It is important to remember that an employer interested in sponsoring a part time H1b alien must file an H1B visa petition requesting that the employee work for it on a part time basis. In other words, part time H1b petitions are requested specifically through the filing of an H1b visa petition by the employer thereby designating a minimum number of hours it requests the employee to work.
One piece of good (actually great) news for companies that wish to convert its existing H-1B visa workforce from full to part time status is that the employer is only required to pay the I-129 filing fee which is currently $320. In other words, the employer needs not pay the $500 fraud fee, or the H-1B visa filing fee which can go up to $1500 for employers having 25 or more employees. This because converting the hours only from full to part time for an existing employee is deemed an amendment which does not require the filing of all of the normal H-1B visa filing fees.
It must also be noted that the part time H1b employee must at a minimum work the number of hours specified in the H1b visa petition. The employer could not reduce the number of hours worked by the part time H1B employee without risking violating Department of Labor regulations and the alien potentially risking jeopardy his or her status. The employee could exceed the number of hours specified in the H1b visa petition, but could not work less.
Part time status for H-1B visa employees maybe the solution for companies facing hard economic times. Instead of benching the H-1B employees which is NOT permissible under the Department of Labor regulations, the employer is able to hold on to its employees, its valuable resources, by petitioning the USCIS to convert the employees’ H-1B status from full to part time.
The lawyers at Shihab & Associates, Co, LPA are experienced in processing H1b visa petitions and in all employment immigration law concerns.