New or Amended H1B Petitions After Material Change

After you get your H 1B petition approved by the USCIS, you can start working for the US employer. However, there is something you need to be cautious about while on H1b status, that is, the amendment of your original H1b petition if any material change occurs.

This is something very important and may lead to the termination of your H 1B status if you remain silent about any material change.

So, each time there are material changes in the terms and conditions of employment, or you change your employment, your sponsoring employer has to file an amended or new petition to the USCIS.

This article will explain what changes can be considered as material changes and how you can file an amended h 1b petition.

When does a new or amended H 1B petition is required?

If material changes occur in your employment, you have to file an amended or new petition every time. The petitioning employer shall fill the fee with the Service Center where the original H1b petition was filed to show any material changes with respect to the beneficiary’s employment. Some of the instances where you have to file an amended or new petition.

Filing an amended petition

If your job role is changing

When there is a change in your job role, you have to file an amended petition to the USCIS. This is because an H1b visa is for a specialty occupation visa, and the adjudicating officer checks whether your education is suitable for the new job role.

So, if your job role has changed, the USCIS will again determine if you are suitable for the new position or not by analyzing your duties.

If your job title has changed

If you get a promotion on your job and there is a significant change in your salary and duties, you again have to file an amended petition required to get approved by the USCIS.

It is not necessary that you should file an amended petition every time there is a promotion unless the change is material enough to make a difference in your job duties.

If terms and conditions of employment have changed

When there is a significant change in the terms and conditions of employment, the employer has to file an amended H 1B petition with the USCIS to notify such change.

A new LCA` has to be filed and submitted along with the amended petition.

If the employee has been transferred to a new worksite location that is outside the area of intended employment

When the employer has transferred the h 1b employee to a new job location that is outside the area of intended employment, an amended h1b petition is required to be filed to notify such a material change.

Filing a new H 1B petition

When the employee has changed his employer

When the current H1b employee has got a job offer from a new corporate entity that wishes to sponsor the employee for the H1b visa, the employee has the option to change his present h1b sponsor. If the employee agrees to work for the new employer, then such an employer has to file a new H1b petition to make an H1b transfer.

How to File an H 1B Amended Petition?

Since you have previously filed an H1b petition, filing a new or amended h1b petition will not be difficult for you. You have to follow the following steps:

Filing amended petitions after material changes

When your present H 1B employment has undergone a material change, you are required to file such an H1b amendment to the USCIS.

Make sure to mention all the changes (including all relevant details) that have occurred in your amendment petition. Collect all the documents related to the H1b employer and the H1b beneficiary like you did in the previous filing.
The employer has to get a new LCA certified from the Department of Labor, mentioning all the important changes that took place in terms of employment. The DOL will approve the new LCA that you have to submit along with your amended petition.
Next, you have to prepare other documentation, such as filling the Form I-129 (petition for a nonimmigrant worker).
If the employer and the employee decides to go for premium processing to save time, they have to file Form I-907 (request for premium processing service)
Send all the relevant documents along with filled Form I-129 to the USCIS.
Once USCIS has received your amendment petition, it will review your case and will decide whether to approve your petition or deny it.
If your amendment petition is approved, you can keep working with the amendments.

Cases in which the petitioner does not have to file an amended petition

The USCIS policy memorandum 2015 provides guidance on when to file an amended h1b petition or a new petition. It also mentions certain scenarios where you do not require to file an amended petition.

Transferred to a new job location within the area of intended employment

When the petitioning employer transfers the H1b beneficiary to a new location of work that is within the area of intended employment, a new LCA is generally not required for such a change.

In such a case, if the terms and conditions of employment remain the same, the employer does not need to file a new or amended h 1b petition.

However, the employer must still post the original LCA to the new work location and ensure that it is documented in the Public Access File (PAF).

Short Term Placements

Sometimes the employer may require the beneficiary to work at other locations for short periods such as 15 days.

In such cases where the employer is placing the H 1b employee to a new worksite location outside of the Metropolitan Statistical Area(MSA), a new or amended h1b petition is not required as long as the placement is for less than 30 days.

Furthermore, If the placement is based in the original location, the h1b employee may be transferred for up to 60 days to the new location without the need of a new or amended H1b petition.

Non-worksite locations

The original petitioning employer is not required to file a new or amended H 1B petition if the employee is just going to non-worksite locations and the other terms and conditions of employment remain the same. The USCIS defines non-worksite location as:

Employee development activities, such as management conferences and staff seminars, are taking place at the location.
Not much time is spent by H1b employees on one location.
The job is “peripatetic in nature.” This means that the employee has to occasionally travel to other locations for work purposes even though they work primarily at one location. Furthermore, a single visit should not exceed 5 consecutive workdays or 10 consecutive working days, depending on the case-by-case basis.

Change in employer’s name

Due to a sole change in the petitioner’s name, a new or amended petition is not required. Such a petition is only required if there is a material change that occurs, in addition, to a change in the employer’s name.

Changes in Ownership Structure

If there is only a change in ownership structure such as corporate restructuring and other terms of employment remain the same, in such cases also, the employer does not require to file for an amended petition.

Frequently Asked Questions

What is the cost of filing an amended H 1B petition?

While the basic H1b visa filing fee for Form I 129 is $460, it is not the same when it comes to filing amended h 1b petitions. For an amended petition, an employer has to pay $1500 to file Form I 129. There could be other expenses as well during the process, such as premium processing fees if the employer wishes to go for faster processing.

Who should pay the filing fee for the amended petition?

The employer obtains approval from the USCIS about such a change on H1b employment. Typically, it is the employer who pays for the amended h1b petition because he is responsible for the material changes.

What is the general processing time for the H1b petition?

Generally, USCIS takes 100-150 days to process your h1b visa amendment petition; however, it may also depend on the following factors.

Time of filing: If you have filed your H1b amendment petition near to H1b peak season, which is around April, you should consider a longer processing time from the USCIS because of the workload.
Case on case basis: The processing time may also depend on case to case basis. If you have a strong case and have submitted all required documents, your case will be processed for the first time.

You also have a premium processing option available for you where the USCIS promises to adjudicate your case within 15 working days. You have to spend extra if you want to go for the premium processing option.

What will happen if I do not file an amended petition?

Filing the h1b amended form is necessary for both the h 1b employee and the employer. If you do not want to face any adverse repercussions, you should always make sure to file an amended petition after every material change.

If you are an H1b employee, failure to file for an H1b amendment petition may lead to the following repercussions:

Losing your H1b status
Being deported from the US
Inability to extend your H1b visa status in the future
Inability to get your change of status application approved

If you are an H1b employer, you may also face some consequences for not filing an amendment petition, such as:

Inability to sponsor H1b employees in the future
Inability to extend the present employee’s H1b status

We do not want anything like this to happen to any H1b employee or employer, so make sure to consider consulting an experienced immigration attorney to discuss your situation.

How can Herman Legal Group help you?

Herman Legal Group provides comprehensive immigration services in American immigration law. We have been helping people in getting their visas, green cards, and citizenship status. If you are on an H1B visa or an H1B employer and want to seek our expert advice about an amendment petition, you can contact us to speak to one of our immigration attorneys. We provide both offline and online consultations so that you can reach us from any part of the world.

Related Post About H-1B Visa: