H1B Amendment

The H-1B is a temporary professional work visa which is employer specific and is issued on a conditional basis. H1B aliens may only work for the petitioning US employer and only in the H1B activities described in the petition. As long as alien continues to provide H1B services for a US employer, most changes will not mean that an alien is out of status. An H1B alien may work on full time or part time (as per what was filed in LCA) and remain in Status. An H1B alien may also be on vacation, sick/maternity/paternity leave, or on strike without affecting his or her status.

USCIS 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.

Material Change

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 alien's employment. A material change is a change that directly impacts the alien'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.

Other material changes

An amended petition would also be required if the corporate structure of the employer goes through a significant change, or if the H-1B worker is transferred to a different legal entity within the employer's corporate structure.

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. Since a valid LCA is required by statute for all H-1B workers, the 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].

Exemption from filing amended petitions:

    Under the provisions of the AC21 law, amended H-1B petitions are not required when the petitioning employer is involved in a corporate restructuring where:

  • The new corporate entity succeeds to the interests and obligations of the original petitioning employer; and
  • The terms and conditions of employment remain the same, except for the identity of the petitioner.

The eligible forms of corporate restructuring may include, but are not limited to, mergers, acquisitions or consolidations. Forthcoming regulations will define the eligible forms of corporate restructuring, and the type of evidence required, including the manner in which that evidence should be submitted for extension of stay requests by the new corporate entity.

An H-1B applicant for admission who no longer works for the original H-1B petitioner and now works for a new corporate entity claiming exemption from the requirement to file an amended H-1B petition may be admitted at a POE if:

  • He is otherwise admissible
  • Unless exempt, he is in possession of a valid, unexpired passport and non-immigrant visa; and
  • He presents a letter from the new corporate entity stating that:
    • The new corporate entity has succeeded to the interests and obligations of the original H-1B petitioning employer; and
    • The terms and conditions of employment of the H-1B non-immigrant remain the same.