James K. Gotcher – Partner
The regulations state that an H-1B amendment is required
to reflect any material changes in the terms and conditions of employment or training or the alien’s eligibility as specified in the original approved petition. An amended or new H-1C, H-1B, H-2A, or H-2B petition must be accompanied by a current or new Department of Labor determination. In the case of an H-1B petition, this requirement includes a new labor condition application. (Amended 6/11/01; 66 FR 31107 )
So what constitutes a material change?
Change in Worksite: About a year ago, the USCIS issued a policy memo that offered guidance as to whether an H-1B amendment is required when the H-1B’s worksite changes after the approval of their H-1B and this was based on a recent precedent decision. (Matter of Simeio Solutions, LLC 26 I&N Dec. 542 (AAO 2015)). The USCIS feels that when there is a change in the worksite and the new worksite is outside the “area of intended employment,” the Petitioner must amend the H-1B with the USCIS. If the new worksite is within the same metropolitan statistical area (MSA) or within a reasonable commuting distance from the previous worksite, the new worksite would be considered as being in the same “area of intended employment” and an amendment is not required. Instead, the Petitioner must re-post the LCA posting notice from the previous worksite at the new worksite for 10 days in 2 places.
On the other hand, if the new worksite is outside the area of intended employment, the USCIS requires the Petitioner to file a new LCA and file an amended H-1B petition with the applicable service center. An amended H-1B petition requires all of the forms and supporting documentation that any other H-1B filing requires but instead of requesting more time on the H-1B like a transfer or extension, you are limited to only requesting through the previous validity period. Since you are not extending the H-1B, the filing fee is only $325. Keep in mind that a Petitioner can also request both an amendment and extension if it is better to request an extension due to the amount of time left on the H-1B’s current validity period.
It should be noted that the USCIS expects to see that the amendment is filed prior to the H-1B working in the amended position. In other words, the amendment needs to be on-file prior to the H-1B starting in that position. As LCAs take 5 business days for certification, it is critical to stay on top of the timing of these changes to ensure that they are filed timely. We have found that in cases where the amendment has been filed late and the USCIS notices the tardiness of the filing, they will approve the petition without an I-94 which causes the Beneficiary to have to get a visa and re-enter on the new approval notice.