Maintaining H-1B Non-Immigrant Status: When Amendment Filings are Required

Practice Areas

By: Brittany Simmons

USCIS is increasingly including information on properly maintaining H-1B Non-Immigrant status as it relates to Amendment filings on some of its correspondence. It is unclear whether this will become a Request for Evidence (RFE) trend. However, it is important to review requirements for H-1B Amendment Filings, and specifically when an Amendment should be filed.

Changes in the beneficiary’s work that do not require an amendment filing:

  • If the Beneficiary is moving to a new location within the same area of intended employment (i.e. the same end-client, but at a location nearby), a new Labor Condition Application (LCA) is not generally necessary. However, employers must repost the LCA at the new location.An H-1B Beneficiary may be placed at a new worksite for up to 30 days, and in some cases 60 days (if employee is still based at the “home” worksite), without obtaining a new LCA provided there are no material changes in the terms and conditions of the Beneficiary’s employment.

  • If the Beneficiary is going to a non-worksite location and there are no material changes in the authorized employment, then an LCA may not be necessary, such us:

    • For an employee development activity;

    • If the Beneficiary spends little time at any one location; or

    • For occasional, short term travel to other locations aside from the primary worksite location (typically not exceeding 5 business days).

changes in the beneficiary’s work that require an amendment filing:

  • Anything that does not fall under the section above requires an Amendment filing since it constitutes a “material change” in the Beneficiary’s employment.

  • Employers need to alert USCIS immediately whenever material changes in the terms and conditions of employment affect a Beneficiary’s status as an H-1B worker.

    • The Beneficiary may not move to the new location until after the H-1B Amendment Petition is filed with USCIS and USCIS issues a physical I-797, Receipt Notice.

conclusion:

It is critical to follow immigration regulations when moving H-1B Beneficiaries to different worksites. Skipping or making an untimely amendment filing could lead to a Request for Evidence (RFE), eventual Denial, or worse. Consult with an experienced Chugh, LLP attorney for advice.