In 1996 the INS issued a Memorandum outlining the general policy guidelines on when a new or amended H1B petition must be filed.
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This Memo was issued to allay confusion about deadlines for filing an amended petition. Although the memo attempts to clarify some important issues, there are many questions, which remain unanswered.
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The position of the INS is that an amended petition must be filed whenever there is a "material change" in the terms and conditions of the employment if these affect the H1B beneficiary's eligibility for the H1B classification. For example, the mere transfer of the beneficiary to another worksite in the same occupation for the same employer would not require the filing of an amended petition, provided that the initial petitioner remains the alien's employer and that the supporting labor condition application (LCA) remains valid, since the beneficiary will continue to work in the same metropolitan statistical area. A new location in a geographical location outside the area listed on the supporting LCA would require an amended H1B petition.
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Neither an amended nor a new petition is required to be filed if the petitioner merely changes her/his name, provided all other the terms and conditions of the alien's employment remain the same. The petitioner, however, has the obligation to notify the INS of the new name when it files for an extension of the H1B Petition.
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Similarly, a change in the ownership structure of the petitioning employer does not require a new or amended petition if the petitioner continues to remain the alien's employer. The new owners of the firm must assume all the previous owner's duties and liabilities, including those relating to the LCA. A mere change in the ownership, without a change in the legal form of ownership, will not require a new or an amended petition.
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If the employer / petitioner merges with another firm to create a third entity and this new company will subsequently employ the beneficiary, under prior law a new or an amended petition was needed. The merger has created a separate legal entity and, therefore, a new employer. However, section 401 of The Visa Waiver Permanent Act (VWPA) enacted in October 2000, states that no amendment is required if the success or entity continues to employ the beneficiary as before. Note that to avoid confusion when the beneficiary travels, it is advisable to carry a letter from the company about the changes (i.e. merger, acquisition, restructuring, etc), a news release or other company document about the corporate change, and a copy of the VWPA.
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A new H1B petition is always required if there is a totally new, unrelated employer.
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In summary, if the change in duties is substantial or there are other major or material changes, an amended petition may be required.
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