H-1B Petition Amendment

On June 11, 2018, the United States Citizenship and Immigration Services (USCIS) issued a new policy guidance memo that significantly alters the H-1B petition amendment process. The new memo makes it much more difficult for H-1B holders to make changes to their job duties, work locations, or employer. The USCIS is now requiring employers to submit extensive documentation any time they want to make a change to an H-1B worker’s visa. This includes proof that the change is following the original terms of the visa, as well as evidence that the worker will still be able to perform their duties after the change is made. This new policy will undoubtedly have a major impact on H-1B visa holders and their employers. If you are affected by this change, it is important to understand your rights and options going forward.

Material Change

A material change is a change to the terms of a petition that is significant enough to warrant re-circulation of the petition among signatories. The most common type of material change is a change in the date or time of the event being petitioned for.

To make a material change, all signatories of the original petition must agree to the change. If even one signatory objects to the change, it cannot be made. This ensures that everyone who has signed the petition is on board with any changes that are made.

If you are considering making a material change to your petition, it is important to weigh the pros and cons carefully. On one hand, making a change could help you get more signatures and make your case more persuasive. On the other hand, it could also alienate some of your existing supporters.

Ultimately, whether or not to make a material change is up to you and your fellow petitioners. If you do decide to go ahead with a change, be sure to circulate the revised petition widely and give everyone plenty of time to consider it before taking any further action.

H-1B Petition Amendment

The H-1B visa is a work permit that allows highly skilled foreign workers to come to the United States to work in “specialty occupations.” These are occupations that require at least a bachelor’s degree or the equivalent. Recently, there have been some changes to the H-1B visa program. One of the most significant changes is the requirement that petitioners submit an amendment any time there is a change to the terms and conditions of employment for H-1B visa holders. In this blog post, we will explore what this new requirement means for employers and employees alike. We will also provide some tips on how to ensure that your H-1B amendment is filed correctly and on time.

Instructive Example

Assuming the H-1B petition was filed before April 1st, the employer can file an amendment to change the start date to October 1st. The amendment should include evidence that:

  • The original H-1B petition was filed before April 1st;
  • The beneficiary will begin working for the employer on October 1st; and
  • There have been no material changes in the employment conditions since the original H-1B petition was approved.

Other Material Changes

In addition to the changes to the H-1B petition described above, other material changes to the petition must also be made if:

  • The H-1B employee will be working at a new worksite not listed on the original petition;
  • The H-1B employee’s job duties have changed significantly from those listed on the original petition;
  • The terms and conditions of employment have changed significantly from those listed on the original petition; or
  • There has been a change in the H-1B employee’s employer (e.g., due to a merger or acquisition).

Exemption from Filling Amended Petitions

If you have already filed an H-1B petition and it has been accepted by USCIS, you may be exempt from having to file an amended petition if the following circumstances apply:

  1. You are changing your job title to one that is similar to your previous job title;
  2. You are changing employers, but your new job will be in the same or a similar occupational classification as your previous job;
  3. You are changing your work location, but your new work location will be within the same metropolitan statistical area (MSA) or the same or adjacent county as your previous work location; or
  4. You are applying for an extension of your stay in the United States.

Denials and Pending Application

If your H-1B petition is denied or you have a pending application, you may be able to amend your petition. An amendment is a request to change something in your petition. For example, you may want to add new evidence or correct a mistake.

To amend your H-1B petition, you must file a new Form I-129 with the correct information. You should also include a cover letter explaining what you are changing and why. Be sure to include any new evidence that supports your amendment.

If your amendment is approved, you will receive a new Approval Notice. This notice will replace the old one and will have updated information about your employment.

How to file an H-1B Petition Amendment

If you need to make changes to your H-1B petition after it has been approved, you will need to file an amendment. An amendment is a request to change something on an already approved petition. To file an amendment, you will need to submit a new Petition for a Nonimmigrant Worker (Form I-129) with the appropriate fee.

In the cover letter that accompanies Form I-129, explain that you are filing an amendment and list the specific changes you are requesting. If you are changing the job duties of the H-1B employee, you will also need to submit a new Labor Condition Application (LCA).

Once USCIS receives your petition amendment, they will send you a receipt notice. The processing time for amendments can vary depending on workload and staffing levels at USCIS, but it generally takes around three months.

Pros and Cons of H-1B Petition Amendments

When an H-1B visa holder changes employers, they are typically required to file a new petition. However, in some circumstances, it may be possible to file an amendment to an existing petition instead. There are pros and cons to both options that should be considered before making a decision.

One advantage of filing a new petition is that it can provide the visa holder with a fresh start. This can be especially helpful if the previous employer was not compliant with the terms of the H-1B visa or if other issues caused problems during the employment relationship. Additionally, starting with a new petition can allow for more flexibility in negotiating wages and working conditions.

However, there are also some disadvantages to filing a new petition. The most significant disadvantage is the cost and time associated with preparing and submitting a new petition. It can also be disruptive to one’s employment if they have already started working for the new employer based on an approved H-1B transfer request. Finally, there is always the possibility that the new petition will be denied, which would leave the visa holder without work authorization.

In general, it is best to consult with an experienced immigration attorney before deciding whether to file a new petition or amend an existing one. They will be able to help evaluate the specific facts of your case and advise you on which option is more likely to lead to a successful outcome.

What happens after you file an H-1B Petition Amendment?

After you file an H-1B petition amendment, the U.S. Citizenship and Immigration Services (USCIS) will review your petition to make sure that it is complete and accurate. If it is, they will send you a notice of receipt. If your petition is incomplete or inaccurate, they will send you a notice of rejection.

If USCIS approves your petition amendment, they will issue you a new employment authorization document (EAD). This EAD will be valid for the same period as your original EAD unless your employer has requested a shorter period.

If USCIS denies your petition amendment, they will send you a written notice explaining why your amendment was denied. You may be able to appeal the decision or file a motion to reopen or reconsider your case.