When is an Employer Required to File an Amended H1B Petition
U.S. employers with employees in H-1B status have an obligation to ensure that they meet the USCIS and Department of Labor requirements for employing a foreign worker. Generally, this includes paying the prevailing wage and ensuring that the employee continues to carry out the same duties and responsibilities that they were initially approved for.
Example: XYZ Co.’s petition to sponsor Vishal for an H-1B visa as full-time, entry-level Software Developer in Cupertino, California was approved for three years. XYZ Co. soon opened a new office in Venice, California and relocated Vishal to oversee the startup. He was promoted to Head Software Developer, offered a substantial raise, and his duties were expanded to include supervising other engineers.
Question: Is XYZ Co. required to file an amended H-1B petition?
In July 2015, the USCIS issued a policy memorandum implementing the AAO’s holding in Matter of Simeio Solutions, LLC, on when employers are required to file an amended H-1B petition.
Employers are required to file an amended H-1B petition when there is a material change in employment. Material change can include:
• A change in the place of employment to a new geographical area requiring a new certified Labor Condition Application (LCA)
• Change in the terms and conditions of employment
The H-1B employee can begin working at the new location upon filing of the amended petition, even before a final decision has been made.
An amended H-1B petition is not needed when:
• The employee is moving to a new job location within the same area of intended employment and a new LCA is not required
• The employee is temporarily placed at a new worksite for 30-60 days, but is still based at the original worksite where the H-1B was approved for
• The employee is going to a non-worksite location to participate in activities such as attending conferences or seminars, or other short-term duties such as delivering goods
Conclusion: In the aforementioned scenario, XYZ Co. should file an amended H-1B petition on behalf of Vishal. First, he was relocated from Cupertino to Venice, constituting a new job location requiring a new LCA. Second, the terms and conditions of his employment were drastically modified: his job title changed, he was promoted, he was given a raise, and his job duties were expanded.
Employers must be diligent in ensuring that they abide by the USCIS and Department of Labor’s requirements over the entire duration of their H-1B employees’ status. Many things can happen over the course of employment that may require an amended H-1B petition and a failure to notify the Department of Labor or the USCIS could result in punishment via civil fines and penalties.