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Reminder: H-1B Amendment Required for “Material Change” in Employment Terms

29 Aug

An H-1B amendment is required when there will be a material change in the terms and conditions of authorized employment. Material changes could include, in some circumstances, a change in worksite location, a significant change in job duties or a change in occupational classification, or a reduction in hours from full-time to part-time or a reduction in salary. The U.S. Citizenship & Immigration Services (CIS) has provided clarification and guidance specifying when an amended petition is required when there has been a change in worksite location.

When Is an Amended H-1B Petition Required Due to a Change in Worksite Location?

Movement outside the geographic area listed in the original Labor Condition Application (LCA) and H-1B petition require certification of a new LCA by the U.S. Department of Labor and will require an amended H-1B petition. The employee may begin work at the new location only after the employer files the amended petition. The CIS has confirmed that movement of the H-1B employee within the same geographic area does not require an amended H-1B petition, so long as all other material terms and conditions of employment remain the same.

CIS has further confirmed that short-term placements that meet the requirements of the short-term placement regulations will not require an amended H-1B petition. Similarly, placements at locations that do not meet the regulatory definition of a worksite will not require an amended H-1B petition so long as other material terms and conditions of employment remain the same.

In What Time Frame Must an Amended H-1B Petition Be Filed?

Generally an H-1B amendment must be filed before the material change in employment occurs. Changes in work location require the employer to file an amended H-1B petition before the employee moves to the new work location.

The CIS position has found recent support in the April 2015, precedent decision of the Administrative Appeals Office (AAO) in Matter of Simeio Solutions, LLC. Following the AAO decision, CIS has provided guidance on how the CIS will enforce the requirement that employers file amended H-1B petitions when their H-1B employees move to a new place of employment. Failure to file the amended H-1B petition before the employee moves to the new work location could result in a determination that the employee has failed to maintain lawful nonimmigrant status and could result in CIS revocation of the existing H-1B petition and/or denial of future requests for extension of H-1B status.

What Steps Should Employers Take?

Foster recommends that all employers evaluate their current H-1B workers’ employment terms and work locations to confirm that each employee remains employed in the position as originally described in the original H-1B filing and at the location(s) identified in the original H-1B petition filing.

When evaluating employee worksite locations, employers should also consider whether there have been any other material changes in the terms and conditions of authorized employment, such as a significant change in job duties or a change in occupational classification or reduction in the salary. Other changes such as the addition of direct reports or promotions to higher levels of responsibility may also be deemed material. An example would be a promotion from an individual contributor role as an Engineer to a supervising role as an Engineering Manager. Such changes may be considered material changes requiring an amended H-1B petition.

Employers should consult their Foster immigration attorneys to evaluate specific cases where there will be or have been changes in the H-1B worker’s employment, and to initiate amended H-1B petitions for such employees.

Foster will continue to monitor changes in CIS enforcement initiatives and will provide additional information in future Immigration Updates© and on our firm’s website at www.fosterglobal.com.