If you are an employer sponsoring an H-1B visa worker, knowing when to file an amended H-1B 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 H-1B Visa Amendment Petition Required?
1. Change in Work Location
One of the key triggers for an H-1B 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 H-1B petition.
Example: If an employee is transferred from New York City to Los Angeles, a new LCA and an amended H-1B petition would be required.
(Update for clarity) This rule also applies if an employee begins working remotely from a home location that is outside the geographic area listed in the original LCA. In such cases, employers may need to obtain a new certified LCA and file an amended H-1B petition before the employee starts working from the new location.
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 H-1B status, would also require an amended petition. USCIS considers these changes to impact the validity of the H-1B petition.
Examples of potential material changes include significant changes in job duties, changes in job role that affect the specialty occupation, or a shift from full-time to part-time employment.
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 typically required because the employer must obtain a new LCA covering the new geographic area and file an amended H-1B petition with USCIS.
When is an H-1B Visa Amendment Petition NOT Required?
While many changes require an H-1B amendment, there are certain situations where filing one is not necessary. These are primarily when the change doesn’t materially affect the H-1B 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” (for example, 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 H-1B worker may be placed at a different worksite for short-term assignments (generally up to 30 days, or up to 60 days in certain circumstances) 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 H-1B 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, certain internal corporate changes such as restructuring may not require an amendment.
(Update for clarity) However, if there is a change in the legal employer entity, USCIS may require either an amended petition or a new H-1B petition unless the new company qualifies as a successor-in-interest to the original petitioner.
Conclusion
Knowing when an amendment is necessary and when not is essential for staying compliant with H-1B visa requirements. If your H-1B 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 H-1B visa.
Sources:
- USCIS Final Guidance on When to File an Amended or New H-1B Petition After Matter of Simeio Solutions, LLC
- ITServe Alliance, Inc. v. DHS, No. 22-5074 (D.C. Cir. 2023)
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JEREMY L. RICHARDS is the founding partner of Richards and Jurusik and has dedicated his career to U.S. immigration law, with a specialized focus on assisting Canadian and Mexican citizens under the United States-Mexico-Canada Agreement (USMCA) to work and live in the United States. (Full Bio)
