H-1B Amendment Key Facts
- H-1B employer (petitioner) must file an amended or new petition, where any material changes have occurred–in the terms and conditions of employment or training or the H-1B employee’s (beneficiary’s)eligibility–from what was specified in the original approved petition.
- A new Labor Condition Application (“LCA”) reflecting the material change must be filed along with the amended H-1B petition.
- The responsibility to determine if the change of material or not, however lies on the employer.
- H-1B employer will be considered to be in violation and the H-1B petition may be revoked, if non-compliance where amendment was required, but did not happen.
While “material change” has been defined under the H-1B regulations, it is a very gray area. Also it differs on a case-by-case basis, and it would be inaccurate to generalize every case and view it through the same lens. So it is always recommended that your case be evaluated by a competent immigration attorney, even though you might feel that based on facts at hand, an amendment might not be necessary. Many a times, a wrong analysis can lead to unnecessary petition revocations and increased future Department of Labor (“DOL”)/Department of Homeland Security (“DHS”) site visits.
Following factors in an employment situation will help you analyze if a “material change” has occurred and if an employer should file for H-1B Amendment:
Routine promotions are generally not deemed “material,” as they do not directly impact the employee’s continued eligibility for H-1B classification. Hence, promotion to a higher position within the same occupational classification would not normally require the filing of an amended petition, provided that the alien is required to utilize the same academic training as was required in the former petition.
For e.g. a promotion of a Programmer Analyst to a senior Programmer Analyst may not require an amended petition. However, promotion from Systems Analyst to a Technology Project Manager (different occupational classification) would most likely require an amended petition. Also, even if an H-1B amendment has not been filed, it is prudent to atleast file a new LCA and maintain it in the LCA Public Access File. Promotion might need a change on the Wage Level in the LCA.
A salary increase which is in line with a promotion within the same occupation classification would not generally be a material change and thus would not require a new petition. However, if the occupational classification and job duties have changed significantly, a new LCA as well as H-1B amendment would need to be filed.
Many H-1B employers at some point in time, realize that they are unable to offer the H-1B employee, work that would justify full-time hours Under American Competitiveness and Workforce Improvement Act (“ACWIA”), an employer is mandated to pay wages to an H-1B employee who is in nonproductive status, unless such nonproductive status is due to either the worker’s own initiative or certain circumstances which render the worker unable to work (e.g. sick leave, family medical leave etc.). These are also known as “no-benching” rules.
When an employer does not have sufficient work for the H-1B worker to make payment of his/her required wages feasible or advantageous to the employer, the employer may terminate the H-1B’s employment, notify immigration and pay for the alien’s return transportation.
However, if the H-1B employee is continued to be employed, but his or her hours have changed significantly, it is prudent that the employer files an amended petition to reduce the worker’s hours in order to avoid remaining liable under the “no benching rules” for the number of hours listed on the previous petition.
Change in Occupational Classification and Job Duties
Majority of H-1B amendments happen due to a change in occupational classification and job duties. A change to an occupation not listed on the LCA invalidates the LCA. Hence, as discussed earlier, a promotion that results in the application of a new Occupational Code (such as a move from professional employment to a management level position) may constitute a change in occupation.
Also, when the new position is in a different specialty occupation, it will be deemed as a material change. For e.g. if a physician on H-1B is teaching or conducting medical research and then seeks to provide clinical care, an amended petition must be filed.
Corporate Name Change
When only the name of the company changes, no new or amended petition need be filed. A corporate name change by itself does not constitute a material change. Note, however, an H-1B amendment is recommended in this case, even though it is not required, as this will prevent the beneficiary from experiencing undue difficulty on future
entries into the United States, on an unexpired visa issued in the previous company name.
If an H-1B employer is involved in a corporate restructuring—including a merger, acquisition, or consolidation—that employer is not required to file amended H-1B petitions on behalf of its H-1B employees if the new corporate entity “succeeds to the interests and obligations of the original petitioning employer”’ and if the terms and conditions of employment otherwise remain the same for the H-1B employees.
After restructuring, the “new” corporate entity must maintain a list of all transferred H-1B employees and draft a “sworn statement” that it will assume all “obligations, liabilities and undertakings arising from or under attestations made in each certified and still effective LCA”. The new corporate entity must file new LCAs and H-1B petitions only if it hires new H-1B employees, or if it seeks an extension of H-1B status for any of its current H-1B employees. This sworn statement must be maintained in employer’s Public Access Files, along with the LCA.
After restructuring, if an H-1B employee is traveling back into the United States he should carry a letter from the H-1B employer stating that:
- New corporate entity has succeeded to the interests and obligations of the original H-1B petition employer; and
- Terms and Conditions of the H-1B employee’s employment remain the same (i.e. there is no “material change”)
Transfer from one Branch to Another
Mere transfer from one branch of a firm to another branch of the same firm does not require the filing of a new or amended petition, since a branch of a firm is not considered to be a separate entity from its parent company.
If H-1B employee is transferred from one entity to another entity within the same organization, a new or amended petition should be filed if the new entity becomes the new H-1B employer. A transfer to a new entity would also include a change in job site, and hence would invalidate the underlying LCA. Hence, an amended petition must be filed.
Change in Job Location or Client Site
This is the most confusing section for H-1B employers. There are very conflicting opinions as to what consists of a job location change, especially in case of staffing employers who employ H-1B employees at third-party client sites.
The problem is involvement of two different enforcement agencies i.e. Department of Labor (“DOL”) and DHS (“Department of Homeland Security”) in conducting site inspections to ensure “No Fraud” in H-1B filings.
An H-1B employee completes his project with Client A in Chicago as a Programmer Analyst, and moves on to a new project with Client B in New York as a Programmer Analyst. H-1B employer properly files a new LCA to reflect the change in location, and even adjusts the wages in accordance with the new prevailing wages (if higher than Chicago). There is no “material change” as far as the occupational classification and job duties. So employer does not feel there is a need to file for an H-1B amendment.
DHS does not know that the H-1B employee has moved from Client A to Client B, since they only have the previous LCA which was filed with the employee’s H-1B petiton, which reflects Client A’s worksite. The Fraud Detection and National Security (“FDNS”), conducts a random site inspection at Client A’s worksite. Obviously they find that the H-1B employee is not working there. United States & Customs Immigration Service (“USCIS”), a part of DHS then either sends a Notice of Intent to Revoke (“NOI”) or automatically revokes the H-1B petition.
Despite having a new LCA on file, because the employer did not file for an H-1B amendment, such revocations can happen and can result in future site audits for the same employer. So the safe rule to follow in order to avoid such circumstances, is to file for an H-1B petition if job location has changed, and a new LCA has been filed.
Are there situations when despite a Job Location has changed, an H-1B Employer need not file an Amendment?
Yes. There are two situations where an H-1B amendment need not be filed despite a change in job location, as long as there are no other “material chances” discussed above. An H-1B amendment need not be filed, if the H-1B employee changes a job location or worksite which falls within:
- Reasonable commuting distance (35 miles) or
- Same Metropolitan Service Area (MSA) as the original worksite for which the H-1B petition was initially filed. For e.g. a work site change from Midtown NYC to Downtown NYC.
Temporary Travel to a Client Location
If H-1B employee is temporarily traveling to a client location for a very short duration (e.g. 2 weeks), employer might not need a new LCA, and hence an H-1B amendment also would not be required. The test would be that it should not become a permanent worksite for the employee.