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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.
This article will discuss:
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.
Example:
- You are working in Plano, TX which belongs to Dallas Fort Worth MSA.
- You get a new client offer in Irving, TX and you move from Plano to Irving for your daily work. Note that Plano and Irving are two different cities and about 30 miles apart.
- Your MSA has not changed since both Irving and Plano belong to the Dallas-Fort Worth MSA.
- No H1B amendment is required in this case.
- Note that your residential address does not make any difference unless you work from home.
#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.
Example:
- Software Engineer to Senior/Lead Engineer or Technical Project Manager – If your new work position requires you to work pretty much in the same area as you were working earlier, then this is not counted as a material change.
- Software Engineer to Group Manager/ Client Manager – This will be considered a material change as the job role has changed significantly where you are now into management instead of computer science engineering. Note that each H1B position must independently qualify as a specialty occupation.
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.
Example:
- You move from San Francisco, CA to New Jersey for a short-term 6-month project for an end-client C2 while your H1B employer’s office stays in CA. This is a material change and you should file an H1B amendment petition before moving and starting work in New Jersey.
- You filed the H1B amendment for NJ and then moved back to CA with the old client C1 as a new contract has been now signed by your H1B employer. Your H1B amendment is still pending. You do not need to file another H1B amendment for client C1 in California if your previous H1B is still valid.
- If the old H1B with a CA location has expired, you will need to file an H1B extension.
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.
Example:
- The employer’s office relocation after acquisition or merger may happen but should not require an H1B amendment as long as the MSA remains the same.
- IT consulting employer shuts down business and starts the same business with a new name. You will need to file an H1B transfer to the new entity.
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.
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Photo printing includedH1B 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
There is no H1B amendment 50-mile rule defined by USCIS.
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.
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.
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
