An H-1B amendment is required each time there is a material change in the terms and conditions of employment. The Federal Regulations provide that the petitioner shall file an amended or new petition, with fee to reflect any material changes in the terms and conditions of employment or training or the alien’s eligibility as specified in the original approved petition. An amended H-1B petition must be accompanied by a new labor condition application (LCA). See 8 C.F.R. 214.2(h)(2)(i)(E).
An easy example of a material change in the terms and conditions of employment is when the job title and job duties change, take for example if an employer promotes its H-1B worker from a position of Programmer Analyst to that of Software Engineer. In this type of case, an H-1B amendment must be filed with a new LCA. However not every promotion requires an amendment. A promotion that involves a job title change and an increase in salary does not necessarily require an amendment unless there has been a significant change in job duties.
USCIS guidance
In 2015, USCIS extended the definition of “material change in the terms and conditions of employment” by including each time an H-1B worker is changed to a geographical area outside the metropolitan statistical area (MSA) or area of intended employment, requiring a corresponding LCA. Per the 2015 USCIS policy, there is a material change in the terms and conditions of employment each time an H-1B worker’s job location changes to a new place requiring the filing of a new LCA. Thus, since 2015, it is no longer enough to place a newly certified LCA at the new job location. A whole H-1B amendment petition must be filed before placing the H-1B employee at a new worksite.
It is, thus, important to note that each time there is an obligation to file an amended H-1B petition, the H-1B worker cannot start working under the new terms and conditions of employment (e.g. starting work at the new job location) until the employer files the H-1B amendment with USCIS.
If an employer allows its H-1B employee to work under the new terms and conditions (including work at a new location not within the same MSA) before an amended H-1B is filed, USCIS may find that the H-1B employee has not maintained his non-immigrant status can either deny the petition or approve it for consular processing only. There might also be other consequences such as a finding of a status violation for the H-1B worker, the inability to subsequently request an H-1B extension or a change of status, etc. The best option is always to seek professional advice from an experienced immigration attorney.
When an H-1B amendment is not required
There are a few situations in which an H-1B amended petition is not necessary:
- Worksite changes within the same MSA: When the employee will be working in the same area of intended employment or is moving to a worksite location within the same MSA. This should be the only change in employment, the other terms and conditions staying the same. In these circumstances, the employer will need to post the original LCA at the new location and make sure that this is documented in the Public Access File (PAF).
- Short-term placements: An H-1B amendment petition is not required when the employer places the H-1B worker at a new worksite location outside of the MSA for a period of up to 30 days. If the employee is still based at the original location, then they may be placed at the new location for up to 60 days.
- Non-worksite locations: An amended H-1B petition is not required if the H-1B worker is going to a non-worksite location, defined by USCIS as:
- Employee is participating in a training session, conference, or seminar.
- Employee spends little time at any one location
- The job is “peripatetic” in nature. For instance, if the H-1B employee works primarily at one location but they occasionally travel for short periods to other locations on a casual, short-term basis. This can be reoccurring but not excessive: the USCIS states that it should not exceed 5 consecutive workdays or 10 consecutive workdays depending on the scenario
- Change in employer’s name: An amended petition is not needed if the employer changes its name, as long as the terms and conditions of the H-1B worker’s employment remain the same.
- Change in ownership structure where the new employer is a successor-in-interest: If there is a corporate restructuring or a change in ownership structure, a new or amended H-1B petition is not needed if the new entity is a successor-in-interest of the original petitioning employer and the terms and conditions of employment have not changed.
The situations requiring an amended H-1B petition can vary depending on the circumstances. If you have any doubts as to whether you might need to file an amended H-1B petition you should speak with one of the Immigration attorneys at Patel Law Group. The Immigration attorneys at Patel Law Group can help you navigate the different types of situations you may be facing and advise on whether an H-1B amendment is truly required.
If you are unsure whether an H-1B amendment is required, please contact Monique Mutombo at mmutombo@patellegal.com or Chris Prescott at cprescott@patellegal.com