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 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, according to Yvonne M. LaFleur, Chief USCIS Adjudicator for the
An instructive example
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.
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
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.
Other Material Changes
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 USCISí»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.
[Note: Please consult
with an attorney specializing in Immigration & Nationality law for
professional advice in specific situations.]