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H1B Amendment: Material Change

H1B Amendment: Material Change

On April 9, 2015, the Administrative Appeals Office (AAO) decided Matter of Simeio Solutions, LLC (26 I&N Dec. 542). This was an important decision which states that when an H-1B worker changes their geographical place of employment (with the same petitioner) it constitutes a “material change” in the terms and conditions of employment. A “material change” is a change in employment which may affect the employee’s eligibility for H-1B status. Therefore, when there is a material change in the terms and conditions of employment, such as a change in work site location, the petitioner must file an amended or new H-1B petition with a new Labor Condition Application (LCA).

Previously, a geographic change in the location of employment with the same employer required a new LCA to cover the new place of employment and corresponding prevailing wage, but not a new I-129 petition. However, now under Matter of Simeio, the petitioner must file a new LCA plus new or amended I-129 petition with the U.S. Citizenship & Immigration Services.

The Dept. of Labor regulations define “place of employment” as the worksite or physical location where the work is performed by the H-1B worker.

When is an H-1B Amendment Required?

· When an H-1B worker transfers from one work site to another.

· When the job responsibilities change significantly, not matching the responsibilities listed in the original H-1B petition.

· When the H-1B worker changes from part-time to full-time, or vice versa.

· When the H-1B employer merges with another company to create a third entity, which will employ the H-1B worker.

When not to file an Amended H-1B Petition

· When the petitioning employer changes the name of the company. Petitioner may report change of company name upon filing extension of H-1B stay for the employee.

· When H-1B worker’s job title changes or gets a promotion, with no significant change in the employer’s job responsibilities.

· When there is a change in ownership structure of the petitioning company.

Advise:

To File the amendment, they will require the letter of end client only to file the H1B amendment. Whenever you are submitting non-Local H1B candidates or when H1B amendment is required, you need to ensure that H1B Holder, Employer and Client are aware of H1B Amendment and can handle the perquisites of filing the new LCA and H1B amendment.

Premium Processing of H1B Visa:

Advise:

We all should know that premium processing of new H1B filing and H1B transfer process is halted till Feb 2019 till further notice by USCIS. Kindly consider this fact while submitting H1B holders for full time or Contract to Hire roles.

Shared by : Ravi Garg
Written by : Pankaj Kumar