If you are an employer sponsoring an H1B visa worker, knowing when to file an amended H1B petition is crucial. Following the Matter of Simeio Solutions, LLC decision, the U.S. Citizenship and Immigration Services (USCIS) has provided clear guidelines for when an amendment is required due to changes in an employee’s work conditions, especially location. This was further upheld in recent court rulings like ITServe Alliance, Inc. v. U.S. Department of Homeland Security. Below is a guide on when you must file an amendment—and when you don’t need to.
When is an H1B Visa Amendment Petition Required?
1. Change in Work Location
One of the key triggers for an H1B amendment is a change in the employee’s work location to a new area that requires a different Labor Condition Application (LCA). Per the Simeio Solutions ruling, if the new worksite is outside the “area of intended employment” listed in the original LCA, an amended petition must be filed to update both the LCA and the H1B petition.
- Example: If an employee is transferred from New York City to Los Angeles, a new LCA and an amended H1B petition would be required.
2. Material Change in Employment Terms
Any material changes in the employment terms or conditions, such as job duties or pay that could affect the employee’s H1B status, would also require an amended petition. USCIS considers these changes to impact the validity of the H1B petition.
3. Changes in Geographic Wage Requirements
A move to a different area could change the prevailing wage requirements under the LCA. If the wage level in the new location differs from the original, an amendment is required to ensure compliance with Department of Labor regulations.
When is an H1B Visa Amendment Petition NOT Required?
While many changes require an H1B amendment, there are certain situations where filing one is not necessary. These are primarily when the change doesn’t materially affect the H1B employee’s work conditions or location.
1. Move Within the Same Metropolitan Area
Suppose the employee is transferred to a new worksite within the same “area of intended employment” (e.g., within the same metropolitan statistical area). In that case, no new LCA or amended petition is needed. However, employers must still post the existing LCA at the new worksite.
- Example: An employee moving from one office to another within New York City doesn’t need an amendment, but the LCA must be posted at the new location.
2. Short-Term Placements
An H1B worker may be placed at a different worksite for short-term assignments (up to 30 or 60 days) without requiring an amendment. The employer does not need to file an amended petition as long as the worker’s main job location remains unchanged and no material changes occur.
3. Non-Worksite Locations
Amendments are not required for non-worksite locations, such as:
- Attending conferences
- Participating in staff seminars or management meetings
- Performing work that is peripatetic (e.g., traveling short distances for temporary work at various locations)
These non-worksite activities do not affect the employee’s H1B status as long as the employee’s main work conditions remain the same.
4. When the Terms of Employment Do Not Change
If the terms of employment (job duties, salary, etc.) remain the same, even if the company undergoes internal changes such as corporate restructuring, an amendment may not be needed. The USCIS recognizes that such corporate changes, where the job and employment conditions remain unaffected, do not require an amended petition.
Conclusion
Knowing when an amendment is necessary and when not is essential for staying compliant with H1B visa requirements. If your H1B employee is moving to a new job location or their terms of employment are changing, be sure to review these guidelines to determine if an amended petition is required. Failure to file an amendment when needed could result in adverse actions, such as revocation of the H1B visa.
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