H-1B Amendments: Frequently Asked Questions (FAQs)

By: Angelita Chavez

WHAT ARE H-1B AMENDMENTS?

Employees on H-1B visas must work under the conditions described in the initial H-1B petition for the length of their authorized employment. These conditions include work location, pay, and job duties. It is essential for employers to make sure that all their H-1B employees work in accordance with the employment details originally filed in their H-1B petitions.

However, sometimes circumstances arise that produce a “material change” in the employment terms from the initial H-1B filing. In these cases, the employer must file an amended H-1B petition with United States Citizenship and Immigration Services (USCIS) on behalf of the employee before the change occurs.

A denied amendment does not affect an employee’s current H-1B status, nor does it prevent an employer from filing another amendment.

WHEN IS AN H-1B AMENDMENT REQUIRED?

An amendment is required when the terms and conditions of employment have significantly changed, or when any material change to the H-1B employment occurs. These include changes to:

• The work location, if it moves outside of the metropolitan statistical area (MSA) listed in the original labor condition application (LCA).
• Job duties.
• A reduction or addition of hours.
• Change in hours between full-time and part-time.
• Salary
• And more.

Employers must file the amendment before the employee begins working under the new conditions.

WHEN IS AN H-1B AMENDMENT NECESSARY FOR WORK LOCATION CHANGE?

An H-1B amendment for work location is only required if the new work location will be outside of the geographical area listed in the original LCA or it is outside a reasonable commutable distance. If the work location will be outside of the geographic area listed on the LCA, the amendment must be filed before the employee begins working from the new location. An H-1B employee may begin working at the new location once USCIS receives the amendment request. If the amendment is denied, then the employee must return to the original worksite listed in the previously approved H-1B.

If the work required at the second worksite is temporary, an employer does not need to file an amendment. Work qualifies as temporary if it meets the following conditions:

• Short-term: The employee will not exceed five consecutive days at the second site in a single visit or ten consecutive days for a traveling employee.
• The work is not acting as a strikebreaker.
• The job requires presence at another site. These roles may include troubleshooting for information technology (IT).

CAN AN EMPLOYEE WORK FROM HOME IN A DIFFERENT GEOGRAPHIC AREA THAN THE ONE LISTED IN AN APPROVED LCA?

Working from home outside the geographical area listed in the LCA will require an H-1B amendment prior to the work from home taking place. The home address must be listed as a worksite location on the LCA. If the employee is not planning to exceed 36 days of remote work at the home, USCIS may grant temporary and short-term placement options on a case-by-case basis.

CAN I FILE MULTIPLE H-1B AMENDMENTS WHILE PREVIOUS H-1B AMENDMENTS ARE STILL PENDING?

It depends. If the second amendment is a location change or an extension it may be okay to file while another amendment is still pending. However, it is not advisable to submit multiple amendments at once. It is important to consult with your immigration attorney when amending an H-1B petition to ensure compliance with USCIS and Department of Labor (DOL) regulations.

CONCLUSION

Overall, it is critical to remain compliant with USCIS and DOL rules and regulations related to H-1B immigration status and H-1B terms and conditions of employment. For questions regarding H-1B amendments, immigration, or other case- specific questions, contact your trusted Chugh, LLP professional.