Amended H1B Petitions

In 1996 Legacy INS (now the USCIS) issued a memorandum outlining the general policy guidelines on when a new or amended H1B petition must be filed.

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.

The position of the USCIS 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, a change from full-time employment to part-time employment would require an amended petition.

Under current USCIS policy trends, a change in job location, particularly where accompanied by other changes in employment terms, has the potential to be considered a material change requiring the filing of an amended H1B petition. This amended or new petition must be accompanied by an LCA for the new employment location.

The interpretation and application of term “material change” is the subject of legacy INS memos and opinion letters. For many years, the general practice for H1B employee relocation was solely to file an LCA for the new location/s, without also amending the H1B petition. This approach was based largely upon favorable interpretations of legacy INS guidance.

However, the current USCIS policies have moved toward more restrictive interpretations with respect to many H1B issues. Thus, there are concerns about relying solely upon past practice and policy. The legacy INS guidance is not binding, and could be potentially read more narrowly than in the past, so as to support requiring H1B amendments for many location changes. The regulations also could potentially be read so as to support this interpretation. This is particularly so where the change in job location also includes other changes in the position, such as changes in duties, salary, minimum hiring requirements, etc. This could be the case where an employee is relocated to a new end client or a project in a consulting context. Relocating an H1B worker without filing an amendment to the petition could result in issuance of a notice of intent to revoke the H1B petition. At the time of this writing, there has been no written policy change. There are, however, indications that the USCIS is utilizing a more expansive interpretation of “material change,” which could encompass changes in job location that were previously viewed as not requiring H1B petition amendments.

Failure to amend H1B petitions where there are material changes in the terms and conditions of employment can lead to findings of violations. Thus, it is recommended that on consult with a qualified and experienced immigration attorney prior to relocating an H1B worker to discuss whether an amended petition is required.

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 USCIS of the new name when it files for an extension of the H1B Petition.

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. Nonetheless, it is highly recommended that these matters be discussed with a qualified and experienced immigration attorney before any changes occur.

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 successor 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), and a news release or other company document about the corporate change.

A new H1B petition is always required if there is a totally new, unrelated employer.

In summary, if the change in duties is substantial or there are other major or material changes, an amended petition may be required.

Copyright © MURTHY LAW FIRM. All Rights Reserved

Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.