The H-1B is a temporary professional work visa which is employer-specific and issued on a conditional basis. H-1B visa holders may only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. As long as the alien continues to provide H-1B services for a U.S. employer, most changes will not mean that an alien is out of status. An H-1B alien may work full time or part time (as per what was filed in LCA) and remain in status. An H-1B alien may also be on vacation, sick/maternity/paternity leave, or on strike without affecting his or her status.
USCIS must be informed of material changes in the employment status as approved by the USCIS in the initial petition. When “material” changes occur that require USCIS notification, an amended petition must be filed with the USCIS.
Material Change
The regulations only state that the petitioner (employer) must file an amended petition to reflect any material changes in the terms and conditions of the alien’s employment. A material change is a change that directly impacts the alien’s continued eligibility for H-1B classification. The regulations do not contain any specific examples of situations where an amended petition should be filed. The determination must be made on a case-by-case basis.
Instructive Example
“Assume an employer obtains approval of an H-1B visa petition to employ an individual as a Loan Administrator for a three-year period at an annual salary of $60,000. If, after a one-year period, the employer seeks to employ that H-1B employee as a Finance Coordinator, performing some of the same duties but adding additional responsibilities, including supervisory duties, at a salary of $65,000, would an amended petition be required? If so, would such an employer be penalized for filing an amended petition after the change had already taken place, as opposed to filing an amended petition prospectively?”
In other words, when a material change occurs, how can an employer determine whether an amended H-1B petition, including a new Labor Condition Application (LCA), is required?
Answer:
A promotion to a higher position within the same occupation 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 example, the promotion of an accountant to a supervisory accountant would not require the filing of an amended petition if the supervisory accountant would still be required to possess the theoretical knowledge of accounting normally possessed by an H-1B accountant.
An amended petition would most likely not be required since, based on the information which was furnished, the alien would still be required to utilize the knowledge of an H-1B Loan Administrator in the performance of his or her supervisory duties.
There is nothing in the current regulations which specifies when the amended petition should be filed: “A petitioner would not be penalized for filing an amended petition after the occurrence of the material change.” Of course, the amended petition must be filed, at the latest, within a reasonable amount of time following the material change.
Other Material Changes
An amended petition would also be required if the corporate structure of the employer goes through a significant change or if the H-1B worker is transferred to a different legal entity within the employer’s corporate structure.
Is an amended petition required if there is a change in job location but no other changes in employment?
Yes, according to the USCIS’s interpretation of “material”. An amended petition would be required if an H-1B worker is transferred to a location outside the area of employment indicated on the Labor Condition Application (LCA) filed in connection with the H-1B petition. Since a valid LCA is required by statute for all H-1B workers, the USCIS believes that the requirement of a different LCA is a material factor, thus triggering the need to file an amended form I-129 (H-1B petition).
A change in salary does not generally require filing an amended H-1B petition, unless the change is so dramatic that it indicates a significant change in responsibility or duties.
Exemption from Filing Amended Petitions
Under the provisions of the AC21 law, amended H-1B petitions are not required when the petitioning employer is involved in a corporate restructuring where:
- • The new corporate entity succeeds to the interests and obligations of the original petitioning employer; and
- • The terms and conditions of employment remain the same, except for the identity of the petitioner.
The eligible forms of corporate restructuring may include, but are not limited to, mergers, acquisitions, or consolidations. Depending upon the nature of corporate restructuring, the type of evidence required may vary, including the manner in which that evidence should be submitted for extension of stay requests by the new corporate entity.
The status requires no affirmative action on the part of the employer in these corporate restructuring scenarios. In these instances, the previous approval and previously issued approval notice remains valid. Therefore, the USCIS will not issue amended approval notices bearing the new company name. Although not necessary, if an employer wishes to obtain an approval notice bearing a new company, the appropriate procedure for obtaining a new approval notice will continue to be through the filing of an amended Form I-129, along with a fee.
An H-1B applicant for admission who no longer works for the original H-1B petitioner and now works for a new corporate entity claiming exemption from the requirement to file an amended H-1B petition may be admitted at a port of entry if:
- He/She is otherwise admissible;
- Unless exempt, he/she is in possession of a valid, unexpired passport and non-immigrant visa; and
- He/She presents a letter from the new corporate entity stating that:
- The new corporate entity has succeeded to the interests and obligations of the original H-1B petitioning employer; and
- The terms and conditions of employment of the H-1B non-immigrant remain the same.
Denials and Pending Applications
If a petitioner’s H-1B petition amendment is denied, the H-1B employee may still work under the original circumstances of his or her approved employment, assuming the employee still maintains valid nonimmigrant status.
If a petitioner’s H-1B petition amendment is still pending, the petitioner can file another amendment, or a new petition, allowing the employee to change worksite locations upon the latest filing. Be aware that each amended or new petition must wholly fulfill the requirements for H-1B classification.
