If you are an employer and you have employees on H1-B status, you may have wondered when you need to file an amended H1-B Petition. This is especially important for employers with offsite employees, such as software engineers, where the nature of the employee’s work may change frequently depending on the clients’ needs.
There are two circumstances in which you must file a new or amended H1-B petition:
- If the employee moves to another worksite that is in a new geographical area for which a new LCA is required; and,
- If there is a material change in the terms and conditions of employment.
File if A New LCA is Required
If your employee’s work site changes to a new geographical area for which a new LCA (Labor Condition Application) is required, that is a material change, and you must file an amended H1-B on Form I-129. The worksite is the place where your employee actually performs work. If the new worksite is out of the normal commuting distance or in a new Metropolitan Statistical Area, a new LCA is required. This is because the prevailing wage that the employee must receive is based on the area of employment, and the US government tries to protect the wages of American workers from decreasing. However, if the new work location is non-worksite, or short-term, an amended H1-B petition might not be required. 20 C.F.R. § 655.715; 20 C.F.R. § 655.73. If the new job location is within the same geographical area, a new LCA and a new or amended H1-B petition probably won’t be required.
File if There Are Other Material Changes
You must file an amended or new H1-B Petition with the corresponding LCA if there is a material change in the terms and conditions of employment.
When You Don’t Need to File
- Your employee stays within the same Metropolitan Statistical Area (MSA)
- It’s a short-term placement (up to 30, or sometimes 60, days)
- It’s a non-worksite location (like attending a conference)
What You Need To Do
Get a new LCA, post it in the new work location. The strike/lockout prohibition of the LCA also applies to each individual worksite. Then file a new or amended Form I-129.
If you are required to file a new H1-B petition for your employee, you are required to do it before the employee starts working at the new worksite. However, there is a grace period until August 19, 2015 for H1-B employees that changed locations prior to the new guidance.
It might be tricky for employers to file an amended or new H1-B petitions, because it could open the entire petition to USCIS’s scrutiny again. There might be Requests for Evidence (RFEs) about the employer-employee relationship. A petition that was previously approved could be denied simply because a different officer is looking at the case, even if the only thing that has changed is the work location. If the new H1-B is denied, but the original one is still valid, the employee can return to that worksite if everything still complies with the H1-B status.
What if my employee changes and I file the amended petition, and then while it’s still pending, the employee needs to change work locations again?
You need to file an additional amended petition. Each amended petition must meet all the H1-B requirements. If the employee’s original H1-B status has expired while other amended petitions are pending, and any single amended petition is denied, then all of the amended petitions will be denied.