The H-1B is a temporary professional work visa which is employer specific and is issued on a conditional basis. The U.S. Citizenship & Immigration Service must be informed of material changes in the employment approved by the USCIS in the initial petition. When "material" changes occur requiring USCIS notification, an amended petition must be filed with the USCIS.
What is a material change in employment? The regulations only state that the petitioner (employer) must file an amended petition to reflect any material changes in the terms and conditions of the beneficiary's employment. A material change is a change that directly impacts the beneficiary's continued eligibility for H-1B classification. The regulations do not contain any specific examples of situations where an amended petition should be filed. The determination must be made on a case-by-case basis, according to Yvonne M. LaFleur, Chief USCIS Adjudicator for the Nonimmigrant Branch.
A query concerning material changes was directed to Ms. LaFleur by a fellow American Immigration Lawyers Association member. The query conceded that when a material change occurs, an amended H-1B petition, including a new labor condition application, is required. In seeking practical guidance as to what types of changes are considered material, the following example was given:
"Assume an employer obtains approval of an H-1B visa petition to employ an individual as a Loan Administrator for a three-year period at an annual salary of $27,000. If, after a one year period, the employer seeks to employ that H-1B employee as a Finance Coordinator, performing some of the same duties, but adding responsibilities, including supervisory duties, at a salary of $35,000, would an amended petition be required? If so, would such an employer be penalized for filing an amended petition after the change had already taken place, as opposed to filing an amended petition prospectively?"
Chief LaFleur replied that a promotion to a higher position within the same occupation would not normally require the filing of an amended petition provided that the alien is required to utilize the same academic training as was required in the former petition. For example, the promotion of an accountant to a supervisory accountant would not require the filing of an amended petition if the supervisory accountant would still be required to possess the theoretical knowledge of accounting normally possessed by an H-1B accountant.
Specifically responding to the example put to her by Ms. Cohen, Chief LaFleur continued that an amended petition would most likely not be required since, based on the information which was furnished, the alien would still be required to utilize the knowledge of an H-1B Loan Administrator in the performance of his or her supervisory duties.
Chief LaFleur further clarified that there is nothing in the current regulations which specifies when the amended petition should be filed. She concluded that "a petitioner would not be penalized for filing an amended petition after the occurrence of the material change." Of course, the amended petition must be filed, at the latest, within a reasonable amount of time following the material change.
An amended petition would not be required if the corporate structure of the employer goes through a significant change such as merger, acquisition, or consolidation, as long as the new entity succeeds to the interests and obligations of the original petitioning employer and where the terms and conditions of employment remain the same. Historically, the USCIS required the filing of an amended petition if the change in organization results in issuance of a new federal tax i.d. number, but this is no longer the case.
If there is a change in corporate structure, and an amended petition is not filed, the H-1B candidate who is returning from foreign travel abroad should carry a letter stating that the new corporate entity has succeeded the previous employer and that the terms and conditions of employment remain the same.
Is an amended petition required if there is a change in job location but not any other changes in employment? Yes, according to the USCIS’s interpretation of "material". An amended petition would be required if an H-1B worker is transferred to a location outside the area of employment indicated on the Labor Condition Application (LCA) filed in connection with the H-1B petition. The USCIS justified this requirement at a AILA liaison meeting: "[s]ince a valid LCA is required by statute for all H-1B workers, the INS [USCIS] believes that the requirement of a different LCA is a material factor, thus triggering the need to file an amended form I-129 [H-1B petition]."
A change in salary does not generally require filing an amended H-1B petition, unless the change is so dramatic that it indicates a significant change in responsibility or duties. Please contact our law firm if you have any questions.
[Note: Please consult with an attorney specializing in Immigration & Nationality law for professional advice in specific situations.]