What is H1B Amendment and when is it required?
An H1B amendment is filed when there is a major change in job duties, including and significant change in salary, along with a change of location. petition is mostly requires all of the same paperwork required as in a new H-1B petition. This way USCIS has been notified of a major change in job.
Do we need to amend the H1B every time I change location?
In most cases you may not have to amend the H1B. But, there are exceptions to this regulation. An amendment is required only when there is a material change in the job. There are serious problems related to H1B amendments due to USCIS site visits, please continue reading…
What is a Material change?
(1) A change in job duties that would result in the position being classified under a different standard occupational code, or where the nature/focus of the duties is quite different than that stated in the H-1B petition. For example, a Programmer/Analyst has significantly changed job duties, and now seeks to provide Database Administration Duties.
(2) Anytime a new labor condition application is required by the DOL, such as when the H-1B worker is assigned to a location in an area of employment not listed on the original LCA. For example, a Systems Analyst authorized to work in NYC who will now work from at Chicago.
The following changes in employment generally do not require that an amended petition be filed:
(1) A change in job title without significant change in job duties;
(2) Minor changes in job duties that do not affect the basic requirements of the job being performed by the H-1B worker;
(3) A promotion to a higher position within the same occupation - i.e., a promotion of a Software Developer to a senior Software developer may not require an amended petition, but a promotion from Software Developer to Technology Project Manager (a different occupation) would generally require an amended petition; (Note: Even if an amended petition is not required, a promotion generally requires that the LCA Public Access File, including prevailing wage documentation, be updated.)
(4) A change in salary, unless the change is so dramatic that it indicates a significant change in responsibility or duties;
(5) Assignment to a new location within the same area, for which a new LCA is not required (i.e., only a new posting is required under USDOL rules) – e.g., a work site change from Midtown NYC to downtown NYC;
(6) The employer's name changes but the underlying nature or terms of the H-1B employment does not;
(7) The employer is involved in a corporate restructuring, including but not limited to a merger, acquisition, or consolidation provided the new entity assumes all of the obligations and rights of the predecessor companies, and the terms and conditions of the H-1B employment remain the same.
(8) If and H1B worker is temporarily traveling to a client location for 2-3 weeks, you may not even need a new LCA
Improper USCIS Policy Interpretations of Location Change is causing serious problems, when there is an FDNS site visit AKA USCIS site visits
Read a Related blog: H1B USCIS Site visits - Are you prepared?
The so called "Material Change" has changed it's meaning when USCIS conducts a site visits, when there is a mere change in job location. Especially, H1B holders working with IT Consulting Companies.
The major problem is when the USCIS conducts a site visit to the employment/client location indicated on the LCA and H1B petition. When an Employer updates an LCA the location changes are updated in USDOL records through LCA (Labor Conditions Application). Unfortunately, there is no mechanism where USCIS gets notified of this change. Thus when the USCIS Fraud Detection and National Security (FDNS) officers visits site, they may end up visiting a site which was actually listed on the initial H1B application and the H1B worker may have moved another Client or Location. If an H1B worker is unavailable, USCIS issues a Notice of Intent to Revoke (NOIR) for noncompliance of the H1B terms and conditions. This may cause a serious threat to H1B status of the candidate, resulting in revocation of the H1B approval from day one.
Recent updates and mandatory H1B Amendments
Please ensure that your new H1B Employer complies with the H1B Amendment regulations while filing new LCAs and amending the H1B from time-to-time when there is a Material change with the H1B employment. Unfortunately, most employers have somewhat complied by filing LCAs but not filing H1B Amendments. If your Employer is not amending the H1B when there is a change, you may get into trouble or go out of status while working at a work site not authorized by USDOL/USCIS – THIS IS VERY IMPORTANT.
When H-1B employees change their place of employment to a worksite location that requires employers to certify a new Labor Condition Application for Nonimmigrant Workers (LCA) to the Department of Homeland Security, this change may affect the employee’s eligibility for H-1B status; it is, therefore, a material change for purposes of 8 C.F.R. §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014). When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H−1B petition with the corresponding LCA. This precedent decision represents the USCIS position that employers are required to file an amended petition before placing an H-1B employee at a new worksite. USCIS will accept comments on the below draft guidance for a limited period of time.
When You Must File an Amended Petition
You must file an amended H-1B petition if your H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) or an “area of intended employment” (as defined at 20 CFR 655.715) covered by the existing approved H-1B petition, even if a new LCA is already certified and posted at the new location.
Note: Once you file the amended petition, your H-1B employee can immediately begin to work at the new location. You do not have to wait for a final decision on the amended petition for your H-1B employee to start work at the new location.
When You Do NOT Need to File an Amended Petition
A move within an MSA: If your H-1B employee is moving to a new job location within the same MSA or area of intended employment a new LCA is not required. Therefore, you do not need to file an amended H-1B petition. However, you must still post the original LCA in the new work location within the same MSA or area of intended employment. For example, an H-1B employee moving to a new job location within the New York City MSA (NYC) would not trigger the need for a new LCA, but you would still need to post the previously obtained LCA at the new work location. This is required regardless of whether an entire office moved from one location to another within NYC or if just one H-1B employee moves from one client site to another within NYC.
Short term placements: Under certain circumstances, you may place an H-1B employee at a new job location for up to 30 days, and in some cases 60 days (where the employee is still based at the original location), without obtaining a new LCA. See 20 CFR 655.735. In these situations, you do not need to file an amended H-1B petition.
Non-worksite locations: If your H-1B employee is only going to a non-worksite location, you do not need to file an amended H-1B petition. A location is considered to be “non-worksite” if:
The H-1B employees are going to a location to participate in employee developmental activity, such as management conferences and staff seminars;
The H-1B employees spend little time at any one location; or
The job is “peripatetic in nature,” such as situations where their primary job is at one location but they occasionally travel for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding five consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).” See 20 CFR 655.715.