Wednesday, June 3, 2015

WHAT OTHER REASONS REQUIRE AN H-1B AMENDMENT?

Much has been discussed about the recent case Matter of Simeio Solutions where the Administrative Appeals Office (AAO) indicated an H-1B amendment is required when an employee changes worksites from one metropolitan area to another.  There are, however, other situations which require the filing of an H-1B amendment.

USCIS regulations indicate that an employer must file an amended petition to reflect any “material changes” in the terms and conditions of employment or training.  While not filing an amended petition can subject both the employer and employee to penalties and liabilities, neither the USCIS or the DOL have defined "material change."

Changes in employment which may require an amended H-1B petition include:
  • Change from full-time to part-time employment or vice versa
  • Reduction in wages, particularly when it affects the prevailing wage
  • Change of more than 50% in job duties, for instance, Occupational Therapist to Director of Rehabilitation
Insignificant alterations in job duties and normal incremental changes in the upward direction do not require an H-1B amendment.  An H-1B amendment is not required for:
  • Promotion when job duties are mostly the same, for instance, Physical Therapist to Senior Physical Therapist
  • Regular merit-based or cost of living pay increases
  • Moving to a new office in the same metropolitan area
  • Short-term placement at a new work location for less than 30 days per year
  • Non-worksite locations, for instance when an H-1B worker attends an professional conference
  • Change in the employer’s name when none of the terms and conditions of employment change
When an H-1B employee’s employment changes, please contact our office.  Together, MU Law and the employer should decide if the change is material and if an H-1B amendment is required.

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