Professionals: When Amending an H-1B Petition is Required
Whenever there is a material change in the terms and conditions of H-1B employment an amended petition and new LCA must be filed. Any change in corporate structure, job duties, hours employed or location of employment may necessitate an employer to file an amended H-1B petition. However, not all changes in employment require the filing of an amended petition.
What Is and Is Not a Material Change?
The following are examples of a material change in employment:
- Change from part-time to full-time employment or vice versa
- Change in duties from one specialty occupation to another specialty occupation
- Change in job location if the change is not covered by the terms of a LCA
The following are examples of changes in employment that are not material:
- Promotion or change in job title within the same specialty occupation
- Change in H-1B employer’s name
- Merger, acquisition, spin-off or change in ownership structure of the H-1B employer provided the succeeding H-1B employer assumes all of the prior H-1B employer’s immigration duties and liabilities under the H-1B program and filed LCAs
- Certain changes in job locations
Change in Name of H-1B Employer Only
If there is only a change in the name of the H-1B employer there is no requirement to file an amended H-1B petition. Notice of the H-1B employer’s name should be given to the USCIS upon the filing of the H-1B extension or next initial H-1B petition.
Promotion or Change in Job Title within the Same Specialty Occupation
A change in job title does not necessitate the filing of an amended petition. If an H-1B employee is promoted from one occupational classification to another, an amended petition may be required. The vital determinant is whether the core duties for the new occupation are at least 50% similar to the occupation currently held by the H-1B employee. If the core duties are at least 50% similar, no amended petition is required.
How Are Amended H-1B Petitions Filed?
If a change in the terms of employment necessitates the filing of an amended H-1B petition, the first step is to obtain a certified Labor Condition Application (LCA). The second step is filing an H-1B amended petition with the USCIS. An employee may continue to work while the amended petition is pending with the USCIS.
Upon approval of the H-1B amended petition, the USCIS issues a Form I-797 Notice of Action Approval Notice. The bottom portion of the Approval Notice contains a new Form I-94 card showing the H-1B status has been amended and the validity period of the new H-1B status, up to a maximum of three years.
The issuance of a Form I-797 Approval Notice authorizes the H-1B amended status and authorizes the H-1B employment to continue. However, it does not enable a person to depart and freely re-enter the United States. If the H-1B employee wishes to travel and the current H-1B visa has expired, the employee must apply for an H-1B visa at an overseas U.S. Embassy or Consulate.
