Editor's note: Posts published on From the Workplace are written by outside contributors and do not necessarily reflect the views or opinions of SHRM.
H-1B compliance problems do not belong only to small firms or stretched HR departments. Well-resourced teams with outside counsel and dedicated tracking systems run into them, too. The gap is usually not knowledge. It is a handoff.
Most H-1B errors still slip through due to small gaps across teams, systems, and timelines.
The Handoff Problem
HR and legal rarely fail on their own. The breakdown tends to happen between them. HR teams manage workforce data, such as salary changes, title updates, work locations, and start dates. Outside counsel handles filings and legal strategy. Both sides are doing their part, but they are not always working from the same set of real-time information.
An employee might receive a promotion in February. The change is recorded in the HR system. From a workforce planning perspective, everything is complete. From an immigration standpoint, that same change may require an amended petition. If that connection is not made at the time of the change, the filing happens later than it should, or not at all.
Location changes carry the same risk. An internal transfer or a shift to remote work can look like a routine workforce decision. Under the H-1B Modernization Final Rule (89 FR 103054), effective Jan. 17, 2025, employers are required to file an amended or new H-1B petition before an employee begins work at a new location that requires a corresponding Labor Condition Application (LCA). Missed filings here are rarely deliberate. They follow from unclear ownership between teams.
Over-Reliance on Tracking Systems
Most HR teams use internal trackers or immigration software to stay on top of deadlines and visa status. These tools do what they are built to do (e.g., flag renewals, surface expiration dates, and generate reminders).
What they cannot do is catch what they were never told. A system showing an H-1B valid through December is accurate based on the last entry. It has no way of knowing about the role change that happened in March, the compensation adjustment in July, or the worksite shift that followed a reorganization.
Teams that lean entirely on platform alerts tend to skip the manual reviews that catch exactly these situations. The tracker becomes a ceiling rather than a floor.
Wage Level Drift
Wage compliance tends to move quietly until it becomes a problem.
The Department of Labor (DOL) updates prevailing wage figures through its Online Wage Library. But the more common exposure comes from role changes that go unrecognized as wage level changes. When an employee's responsibilities grow without a title or LCA update, the wage level required for the position may increase even if compensation has not.
HR teams often manage compensation through internal salary bands that do not align directly with DOL wage levels. A raise that satisfies internal benchmarks may still fall short of what is required for the role as it has evolved. This tends to surface during an audit rather than during annual compensation planning, which is when it is hardest to fix.
The Cap-Gap Blind Spot
The cap-gap provision is familiar to most HR teams in general terms, but the details create risk.
Cap-gap protection extends work authorization for certain F-1 students when an H-1B petition is filed on time. It does not apply in every situation. The timing of the filing, the employee's status at that time, and any prior gaps in employment all matter.
The risk is not that HR teams misread the rule. It is that no one confirms all the conditions are met before the employee keeps working. The employee assumes coverage. HR assumes counsel checked. Counsel may not have the full employment history. Nobody made a wrong decision. Nobody made the right one either.
What Closes the Gap
The organizations that stay out of trouble tend to run immigration as a shared workflow, not a legal silo.
HR and outside counsel maintain a standing list of employment changes that automatically trigger an immigration review:
- Pay adjustments.
- Title changes.
- Location moves.
- Remote work arrangements.
The review happens before the change takes effect, not weeks later. Compliance checks run on a calendar, not just at renewal time. That cadence catches drift that renewals never would.
None of this depends on headcount or budget. It depends on knowing who is responsible for connecting an HR decision to a legal filing and ensuring that connection is made.
Jimmy Lai is the Founding and Managing Partner of Lai and Turner Law Firm PLLC in Oklahoma City, advising employers on immigration compliance and workforce-related legal issues.
Was this resource helpful?
Validate your HR expertise
Earning your SHRM-CP credential makes you a recognized expert and leader in the HR field.
Related Content
Learn how Marsh McLennan successfully boosts staff well-being with digital tools, improving productivity and work satisfaction for more than 20,000 employees.
The proliferation of artificial intelligence in the workplace, and the ensuing expected increase in productivity and efficiency, could help usher in the four-day workweek, some experts predict.
As artificial intelligence technology continues to develop, the demand for workers with the ability to work alongside and manage AI systems will increase. This means that workers who are not able to adapt and learn these new skills will be left behind in the job market.