An H1B amendment is required when a material change occurs in the terms and conditions of H1B workers employment. A material change is any significant change to the terms and conditions of the H1B workers employment. Examples of material changes that would require an employer to file an amended H1B petition include:
- The H1B employees place of employment changes to a worksite location outside the metropolitan statistical area (MSA) or area of intended employment.
- The H1B employees place of employment changes to a worksite location that requires the employer to certify a new Labor Condition Application (LCA).
- Changes have been made to the terms and conditions of the H1B workers employment.
When to File an Amended H1B Petition
The employer should file an H1B amendment in any of the above listed cases. In the case of changes made to the terms and conditions of the workers employment, take for example if an employer files an H1B petition for a Programmer Analyst but later promotes the worker to a Software Engineer position, an amended H1B petition should be filed along with a new LCA.
The employer does not need to file an amended H1B petition in the case of the following situations.
- Worksite changes within same MSA: The employee will be working in the same area of intended employment or is moving to a worksite location within the same MSA.
- Short-term placements: If the employer places the H1B worker in a new worksite location outside of the MSA for a period of less than 30 days, an H1B petition amendment is not required.
- Non-worksite locations: An amended H1B petition is not required if the H1B worker is going to a non-worksite location, defined by USCIS as:
- Employee is participating in a training session, conference, or seminar.
- Employee spends little time at any one location.
- The job is peripatetic in nature. For instance if the H-1B employee works primarily at one location but they occasionally travel for short periods to other locations on a casual, short-term basis. This can be reoccurring but not excessive: the USCIS states that it should not exceed 5 consecutive work days or 10 consecutive work days depending on the scenario.
- Change in employers name: As long as the terms and conditions of the H1B workers employment remain the same, an amended petition is not needed.
- Change in ownership structure where the new employer is a successor-in-interest: If there is a corporate restructuring or a change in ownership structure a new or amended is not needed if the new entity is a successor-in-interest of the original petitioning employer and the terms and conditions of the employment have not changed.
Filing an Amended H1B Petition
To file an amended H1B petition, the employer must file Form I-129 to notify USCIS of a material change to the H1B employment. The H1B worker may not file the H1B amendment; only the employer may file an amended H1B petition.
The H1B amendment filing fee is $1500 for filing Form I-129. The ACWIA fee is not required for filing amended H1 visa petitions.
USCIS has been slowly expanding the scenarios that require an amended H1B petition so if you have any doubts as to whether or not you might need to file a new or amended petition you should speak with your employer and your employers immigration counsel.
Filing for H1B extension of stay is not the same as filing an H1B amendment, although both actions require filing Form I-129. For information about extension of H1B visa status, visit H1B Extension.