WHEN SHOULD AN AMENDED H-1 PETITION BE FILED?

Any material change occurring in the original H-1 petition approved by the Immigration and Naturalization Service (INS) must be reported to the INS and an amended petition should be consequently filed.

What Are The Material Changes?

It is necessary to file an amended petition when the following material changes arise:

The job duties of the H-1B employee change so significantly that the duties are no longer the same as those of the position identified in the original petition.

The H-1B employee is transferred to a different legal entity within the employer’s corporate structure.

A new Labor Condition Application (LCA), is required by the DOL; this may be, when the H-1B employee is assigned to a location in an area of employment not listed on the original LCA or when there is a change in the employer’s tax identification number.

What Are Not Construed As Material Changes?

The following changes in employment do not necessitate the filing of an amended petition:

1. A change in the job title without a major change in job duties.

2. Minor changes in job duties that do not affect the basic requirements of the job being performed by the H-1B employee.

3. A promotion to a higher position within the same occupation provided that the alien is required to use the same academic training as was required in the original position; e.g. a promotion of a management analyst to a supervisory management analyst would still be expected to have the theoretical knowledge of management that any H-1B management analyst would normally possess.

4. A change in salary, except where the change is so remarkable that it shows a significant change in responsibilities or duties.

5. Transfer to a new location for which a new LCA is not required (i.e., only a new posting is required under DOL rules).

6. A change in the petitioner’s name.

7. A change in the ownership structure provided the new owner is a U.S. employer and considerably takes up all of the assets and liabilities of the employer, which filed the original petition.

8. A change in the corporate structure where:

(a) the new corporate entity succeeds to the interests and obligations of the original
petitioning employer; and

(b) the terms and conditions of employment remain the same, except for the identity of the petitioner.

The eligible forms of corporate restructuring may include, but not be limited to, mergers, acquisitions or consolidations. Imminent regulations will define the eligible forms of corporate restructuring, and the type of evidence required, including the manner in which that evidence should be submitted for extension of stay requests by the new corporate entity.

In such corporate restructuring situations, the employer is not required to take any affirmative action. In these circumstances, the previous approval and previously issued approval notice remain valid. Therefore the Service will not issue amended approval notices bearing the new company name. Although not necessary, if an employer wishes to obtain an approval notice bearing the new company name, the appropriate procedure for obtaining a new approval notice will continue to be through the filing of an amended Form I-129 with fee