The H-1B visa process can be tricky to navigate. Aside from the initial paperwork, interviews, and waiting process involved, it’s not over once you’ve been approved. As an H-1B visa holder, you must maintain good standing during your stay in the US, follow the correct renewal procedures and timelines, and inform USCIS of any changes to the status of your employment.
Such changes in your employment may require you to file for an H-1B visa transfer. An H-1B transfer is the process of applying for a new H-1B visa when you change employers. You can read more about the details in our article, “Changing Jobs On An H-1B Visa: The Good, The Bad, And All The Possibilities.”
But what happens when you’re not changing employers, but you have a new position at your current company, or you have been relocated to another state or city? Situations like these require your employer to file an H-1B amendment.
What is an H-1B amendment?
On April 9, 2015, USCIS’ Administrative Appeal Office (AAO) issued a precedent decision, Matter of Simeio Solutions, LLC. This decision held that employers must file amended H-1B petitions when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required due to a change in the H-1B worker’s worksite location.
An H-1B amendment is an act of filing a Form I-129 with a corresponding Labor Condition Application (LCA) to notify the USCIS of a material change. Only your employer can file on your behalf, and it must be filed before the material change occurs.
Specifically, USCIS has defined that an amendment is needed when:
- A change in the place of employment of a beneficiary to a geographical area requiring a corresponding LCA be certified to the Department of Homeland Security (DHS) with PM-602-0120: USCIS Final Guidance on When to File an Amended or New H-1B Petition After Matter of Simeio Solutions, LLC Page 2 of 7 respect to that beneficiary may affect eligibility for H-1B status; it is, therefore, a material change for purposes of 8 CFR §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).
- When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H−1B petition with the corresponding LCA.
There are additional situations that may require your employer to apply for an amendment. Examples can be a change in your job title or role if it exceeds the same academic training that was required in your previous position or a significant increase in your salary.
Understanding the H-1B amendment ruling
The Matter of Simeio Solutions, LLC case, resulted in the outlining of strict requirements for notifying USCIS when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required.
In this case, the petitioner filed Form I-129 for H-1B visa status approval. The petitioner was an information technology services company, and the beneficiary was an F-1 student in a post-degree optional practical training program. The business location listed on the LCA was an address in the Los Angeles-Long Beach-Santa Ana, CA Metropolitan Statistical Area (MSA). It was stated that the beneficiary would work from this office for a specific client. The petitioner did not request approval for any other worksites.
The USCIS Director approved the H-1B petition based upon the information submitted by the petitioner. The beneficiary began working for the petitioner and left the US after approximately two months.
Later, the beneficiary applied for an H-1B visa in India based on the previously approved Form I-129. After the visa interview, the consulate requested more information, “including a letter from the petitioner’s client regarding the work to be performed by the beneficiary.” In response, the petitioner indicated that the beneficiary performed work for other clients not named on the original Form I-129.
Due to this new information that was not provided on the original approved Form I-129, USCIS conducted a site visit to the Long Beach facility that was specified as the beneficiary’s work location. It was discovered that the beneficiary moved to various projects in other MSAs after H-1B status approval.
Based on this discovery, USCIS revoked the formerly approved Form I-129. The petitioner had the opportunity to respond and provide a rebuttal. The petitioner confirmed that the beneficiary was not working on the project or location, as specified in the original Form I-129. The USCIS concluded that a new Labor Condition Application (LCA) and amended petition were required because the changes in the applicant’s work placement was a “material change.” The decision to revoke the H-1B visa remained in place.
This case is a prime example of the importance of consulting with a reputable immigration attorney to avoid errors due to uncertainty and ambiguity in the material changes in H-1B employment.
When is an amendment not required?
An H-1B amendment is not required in the following situations:
- Relocation within the same metropolitan statistical area (MSA). However, you must still post the original LCA at the new location.
- Short term placements outside of the MSA for periods less than 30 days. In some cases, it can be up to 60 days without requiring a new LCA. Refer to 20 CFR 655.735 for more details.
- If the H-1B employees are going to a location to participate in employee developmental activity, such as management conferences and staff seminars;
- If the H-1B employees spend little time at any one place; or
- If the job is “peripatetic in nature,” such as situations where their job is primarily at one location but they occasionally travel for short periods to other sites “on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding 5 consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).” See 20 CFR 655.715.
- Or a change in ownership structure or corporate restructurings, such as a merger, acquisition, or consolidation. As long as the terms and conditions of employment remain the same, an amendment is not needed.
How to file an H-1B amendment
As mentioned earlier, your employer must file Form I-129 on your behalf to notify USCIS of a material change. An LCA and a Letter of Support to prove your good moral character is also required. There is a filing fee of $1500 to submit the request.
Once the request is submitted, you are permitted to begin work at the new location or in the new position. It may take around 4 to 6 months to process your amendment, and this time can vary depending on the USCIS visa center workload and the timing of your filing. Petitions filed close to the H-1B visa filing season, which takes place in April, may experience a long wait time.
If your status expires and any petitions to extend are denied, then any pending requests, such as an amendment, will be rejected. Because of this, your employer must include receipt notices of prior petitions within the amendment file as proof that the requests were submitted before your status is set to expire. Failure to submit an amendment can result in USCIS revoking your visa or denying a renewal.
Amendment denials
If your work location amendment is denied, the status of your H-1B visa is not affected, assuming you still satisfy the conditions of your original petition. You may resume work at your previous job site location. However, USCIS may revoke your original H-1B visa status if you started working at the new worksite before the petition has been filed.
Change in position amendments often get denied because of the failure to prove the new position is a specialized occupation. In this case, USCIS will send a Request for Evidence (RFE) to allow your employer to provide more evidence. The timeline to respond is typically between 30 and 90 days. Be sure to provide as much detail as possible to avoid further delays or denials. If the final decision results in a denial, you can return to your previous job role and still satisfy the conditions of your H-1B visa.
Another possible reason for denial is the failure to prove an employer/employee relationship. Particularly in subcontracting work agreements, your employer will need to provide evidence such as a work contract agreement between themselves and the subcontractor. If you are working at an off-site location, your employer must provide proof that they manage you and the subcontractor has no authority over your hiring, firing, or salary. A clear chain of command must be established between your employer and you.
In most cases, USCIS will issue an RFE before denying or rejecting a petition. This gives your employer time to provide new evidence and have the case reevaluated. The most common reason for an amendment to be denied is the lack of sufficient evidence, even after the opportunity to provide further proof. It is essential to consult with an immigration lawyer who is experienced in employment-based visas and the types of documents that satisfy the USCIS requirements.
The contents of this article are intended to convey general information only and not to provide legal advice or opinions.
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