H1B Amendment 50 Mile Rule – Do Salary Increase, Promotion Require Change?

H1B Amendment should be filed with USCIS before starting work if MSA, Job duties, end client change. Understand when new LCA is required.

Written by Anil Gupta
  Anil Gupta    Updated 17 Jul, 24


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H1B amendment is required if there are material changes in the job position. These ‘material changes’ are sometimes difficult to understand as there are multiple parameters used to define them.

What is an H1B Job Material Change?

A material change can be one of the following:

#1 H1B Work Location Change

If the H1B employee has to move to a new worksite that is in a different MSA (metropolitan statistical area), then this is counted as a material change. This will require an H1B Amendment.

Note that an MSA is quite a big area and may or may not change within a 50-mile radius.

There is no H1B amendment 50-mile rule by USCIS. Most people and attorneys just refer to it in general terms whereas the USCIS and DOL judge the change in H1B jobs by looking at the worksite’s (zip code) MSA.

#2 Salary Increase, Job Title Change, Job Promotion

Have you got a promotion recently? This is good news but you do not need to file an H1B amendment as long as the job duties have not changed significantly from the current approved H1B position.

You will need to file an H1B amendment if the promotion makes your job duties change even if the MSA remains the same.

A salary increase does not require H1B Amendment.

#3 End-Client Change

Many H1B IT consulting companies have short-term projects with end clients and keep moving their H1B consultants around the same city as they get new business.

The general rule of thumb to follow in these cases is again the change of MSA.

If you change your end client within the same MSA, you can post the existing LCA at the new work location and avoid filing an H1B amendment.

#4 Change in Employer Name/ Acquisition/ Merger

You do not need to file an H1B amendment if your employer has merged with a new company and the new company is taking over all assets and liabilities. This is also known as successor-in-interest in legal terms.

The same holds true for cases where the employer’s name is changing unless there are changes to the H1B job as well.

H1B Amendment Calculator

Use this calculator to easily find if an H1B amendment is needed for your case. It automatically finds the MSA change based on Google Maps location, your SOC code, and your salary changes.



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Disclaimer:

All efforts have been made to evaluate the parameters required to find out if an H1B amendment is required or not. The final decision still rests with USCIS and/or your attorney who will decide whether to file an amendment or not.

H1B Extension vs Amendment

Each H1B amendment is also an extension application as the employer usually requests a full 3-year term with each amendment too.

This is not true with the H1B extension as the extension is filed at the end of the current H1B i797 validity. This extension may not have any changes except the annual salary increase and hence is a simple extension of work authorization.

Both H1B amendment and extension are filed using Form I-129 which can only be filed by a US employer. An employee cannot file an amendment on his own. All H1B petitions require a US employer sponsorship.

LCA Amendment

A new LCA will be required to file H1B Amendment.

If there is no material change to the job, then a new LCA approval from DOL is not required. You can fulfill the LCA amendment requirement by posting the previously approved LCA at a new work location or within the same office if you get promoted.

The HR department needs to record this activity and produce if DOL audits or USCIS site visits ask for it.

Amendment is Denied

H1B amendment can be denied if the new job does not qualify as a specialty occupation. This does not invalidate your existing approved H1B petition.

You can go back to work with existing or old H1B employers if their petition is still valid.

Multiple H1B Amendments at the Same Time

You can file multiple H1B amendments with USCIS. This may happen if you have changed work locations quickly within 3 to 6 months’ time and the previous amendment is still pending.

The previous pending amendment result will not affect the new amendment as long as the second amendment was filed before your i94 expiry.

If the second amendment was filed after the i94 expiry, then the pending first amendment will become a bridge petition and will affect the second one.

FAQ

What is the H1B Amendment 50 Mile rule?

There is no H1B amendment 50-mile rule defined by USCIS.

Can my existing H1B LCA be reused for the H1B Amendment?

You may not be able to use the existing H1B LCA for filing amendment as the job position has material changes and requires a new prevailing wage determination at the new work location.

Is H1B visa stamping required after the H1B amendment?

There is no H1B visa stamp in the passport required after filing the H1B amendment unless you plan to travel outside the US and you do not have a valid stamp to reenter the USA.

Can I use an Old H1B visa stamp to enter the US after H1B Amendment Approval?

You can use the old H1B visa stamp in your passport to enter the US even when working at a new location with a new client.

Source: USCIS



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Written by Anil Gupta
  Anil Gupta  
Mentor | Immigration and Finance Journalism | Humor | Opinions are my own