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First, congratulations if you were lucky enough to be selected in the H-1B visa lottery for a new H-1B visa.  Your chances were 30-50% of being selected, so well done.

Second, as part of the H-1B visa application process you filed and served paperwork with the Department of Labor (DOL) promising the government that, if you received the visa, you would pay the recipient a certain wage.  The DOL certified your promise and your H-1B application is premised on you paying at least that wage at all times while they are your employee, except under very limited circumstances such as a person’s foreign travel or unpaid medical leave.

Third, if the H-1B employee’s office moves, or they take on a different job with different duties, or there is a business identity change, such as a merger or acquisition, the government needs to know. It is likely that additional filings with both the DOL and the Department of Homeland Security will need to be made.

Fourth, if the employee was on F-1 status, allowing you to not withhold FICA, that changes once they switch over to H-1B status. They are now likely subject to FICA withholding.

Fifth, strategically you will need to determine how much you want this person to be a part of your company long-term.  H-1B status is only available a maximum of six (6) years. After that, the person loses the ability to work in that status, unless a Green Card application has been approved and is awaiting adjudication. You should begin the Green Card process no later than the third year of the employee being in H-1B status.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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Kevin M. Mosher

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