Prominent immigration attorney Rebecca Chen has issued a critical warning for H-1B visa holders in the United States, emphasizing that even minor lapses in legal status can now lead to severe financial consequences, including a hefty $100,000 supplemental fee. The focus, she stresses, must be on meticulously maintaining a valid immigration status while inside the US.
The High Cost of Falling Out of Status
Chen highlighted a new rule announced in September, which imposes a $100,000 fee on certain H-1B petitions. While this fee specifically applies to petitions filed for beneficiaries outside the US, its reach extends to those who fall out of H-1B status and must leave the country to regain their classification. "Earlier, these mistakes could be corrected relatively easily by leaving the US and re-entering after consular processing," Chen explained. "But now that has become extremely risky with new regulations coming every day."
A common and costly mistake, according to Chen, is failing to file an amended H-1B petition when a worker's job location changes. She clarified that employers must file an amendment for every new worksite or remote work location in a new Metropolitan Statistical Area (MSA), even if the job duties, title, and salary remain the same.
Proactive Steps for Employers and Employees
Chen advised employers on implementing robust compliance measures. The Labor Condition Application (LCA) wage compliance must be continuous, with actual wages meeting or exceeding the LCA's required wage at all times. She recommended that onboarding, payroll, and HR teams work in close alignment to ensure no location change occurs without a prior review by immigration counsel.
Furthermore, Chen pointed out that the H-1B program does not permit unpaid status or reduced work hours without proper authorization. If US Citizenship and Immigration Services (USCIS) determines that a worker failed to maintain H-1B status because their labor condition was changed without the necessary filing and processing, the massive $100,000 fee can be imposed.
The 60-Day Grace Period: A Critical Safety Net
In this high-stakes environment, Chen underscored that the 60-day grace period for H-1B visa holders is more valuable than ever. This provision allows a beneficiary to remain in the US legally for up to 60 days after losing their H-1B status. During this window, individuals can change their status to B-2 (visitor), H-4 (dependent), or F-1 (student) to extend their lawful presence while searching for a new job.
"Since they are in the US, their new H-1B petition, once they get a job, will not trigger the $100,000 fee," Chen explained. This makes strategic use of the grace period crucial for avoiding the supplemental fee and navigating employment transitions smoothly.
The overarching message from the immigration expert is clear: in the current regulatory climate, vigilance and proactive compliance are non-negotiable for H-1B visa holders and their employers to avoid unprecedented financial penalties.
