One of the hallmarks of the H-1B visa is the fact that it holds a few advantages over other nonimmigrant visa classifications. A chief advantage is its portability. Being able to change employers, work full or part time, and even work for multiple different employers simultaneously is a main reason why the H-1B is so competitive. However, you may not realize that you need an H-1B amendment for location change, even if it is with the same employer.
Due to the policy changes from the USCIS in recent years, employers of H-1B workers who are expected to change locations must take precautions before any type of relocation occurs. An amendment is necessary.
What is an H-1B Amendment?
There are several situations in which you would need to have your sponsoring employer file a new petition on your behalf. If your position is changing significantly or if you are changing employers altogether, a new petition is needed. This means that the USCIS will re-decide if you are qualified for your H-1B visa.
However, there are some circumstances where your employer would simply need to file to have your current petition amended. These include a change in job duties, a significant salary increase, or a change in title. In these instances, as long as the position is still considered a specialty occupation that requires your bachelor’s degree or higher, you should just need to have your petition amended.
But what about a change in job location? Do you need an H-1B amendment for location change, even with the same employer? We’ll take a look at how the USCIS has handled H-1B location changes in the past to see if an amendment is needed.
Former H1B Petition Procedures with Material Changes
The prior USCIS policy and interpretations allowed H-1B workers to relocate without a H-1B amendment. According to the INS Adjudicator’s Field Manual, if there were no ‘material changes’ within the terms and conditions of employment, an H-1B amendment was not mandated. It was, however, required to obtain a Labor Condition Application (LCA) for the new area of employment before relocation.
There are three main attestations that must be made for an LCA:
- That the employer will pay the H-1B employee at least the prevailing wage
- That the employment of the H-1B worker will not negatively impact the current workforce
- That the workers are not currently on strike
- The the current workers have been notified of the intention to hire the H-1B worker
The reason that a new LCA was required was because the LCA is dependent on the particular location and geographic positioning of the job. The prevailing wage for your position in one location may be much different than the wage in another. Also, this is to prevent employers from being able to hire you for one location where the workers are not on strike, just to move you to a location where they are.
Policy Interpretations of Location Change
Problems with the policy incur when the USCIS conducts a site visit to the employment location indicated on the H1B petition. Since the location changes are only submitted to the Department of Labor through the Labor Certification Application, the USCIS is unaware of any changes. Thus when the USCIS Fraud Detection and National Security (FDNS) group visits the area of employment, they visit the previous employment site. The H1B’s employment legitimacy is then challenged.
Typically, when the FDNS visits a previous employment site, the USCIS submits a Notice of Intent to Revoke (NOIR) for noncompliance of the H1B terms and conditions.
If the H-1B worker has received a NOIR, the H-1B petition has the risk of being revoked. Some employers are able to solve the problem if they provide evidence of having filed a new LCA with the employee’s relocation in a timely manner.
Another rising issue that typically occurs is when IT consulting companies hire H-1B holders. Generally, consulting companies place their H-1B workers at different client locations. This causes the USCIS to doubt H-1B employer and employee compliance to H-1B regulations. According to the Adjudicator’s Field Manual, as long as the beneficiary maintains the same employer, salary, title, and duties he/she is not mandated to file an amended petition.
H-1B Amendment for Location Change
Though the USCIS has not stated specific regulation changes, due to the pattern of recent denials, it is highly advised to file an H-1B amendment when there is a change of the employee’s work location. The H-1B amendment must always be filed for any ‘material changes’ in the terms and conditions of employment. It would seem that the USCIS considers a change in location as a material change that requires an amendment.
The safe course of action is to file the H-1B amendment for location change. However, your immigration attorney can better assess your situation and advise you on the best thing to do.
What is the H-1B Amendment Processing Time?
Like the original H-1B petition, your amendment processing time will depend on the caseload of the service center that is processing it. A general rule of thumb is this: the closer it is to the H-1B filing season (April) the longer it will take to process your amendment. On average, it can take between 4 and 6 months to process your H-1B amendment, though it can take more or less time given the circumstances. Alternatively, you may be able file the amendment with premium processing to reduce the processing time to 15 calendar days.
How Our Immigration Attorneys Can Help
Dealing with the nuances of the H-1B visa can be overwhelming and can easily lead you to make a decision that you and your employer will regret. Don’t risk wasting both time and money on easily avoidable mistakes. Hiring a qualified H-1B attorney is the best way to ensure that you are making the optimal decisions with your visa.
If you are unsure whether you have conducted a material change or affected your employment terms and conditions, please contact our immigration attorneys. We are able to assist you with H-1B filings and amendments.