Is an H1B amendment required when the job site changes?
Many employers believe that if they move an H1B from one job site to another, all they need to do is file a new LCA. This belief flows from some unofficial and subsequently disowned correspondence from an INS official about ten years ago. The regulations quite clearly state that an H1B petition amendment is required whenever there is a "material change" in the terms of employment set forth in the original H1B petition.
In a recent quarterly stakeholders meeting at the California Service Center (August 10, 2011), USCIS personnel offered opinions with respect to two hot topics: the need for an H1B amendment when the beneficiary's employment changes, and the continuing validity of an H1B extension even if the underlying I-140 is denied or revoked.First, let's look at the question concerning the need for an H1B amendment when an employee moves to a new job site:
"Q. Stakeholders report receiving Notices of Intent to Revoke (NOIR) approved H-1B petitions for beneficiaries who have moved from the location of employment reflected in the H-1B petition to a new location where a valid LCA was filed with and certified by DOL. It appears that the CSC requires an amended petition whenever there is a change in a beneficiary’s work location. Specifically, the NOIRs state:
"the beneficiary was not working at [the address indicated on the petition], as described in the initial filing of the petition. As mentioned above, when a petitioner signs the petition, he or she is certifying that the petition and all evidence submitted with it, either at the time of filing or thereafter, is true and correct. The USCIS records do not indicate that the petitioner filed an amendment of the beneficiary’s place of employment."
The Adjudicator's Field Manual at 31.2(e) states, “The mere transfer of the beneficiary to another work site, in the same occupation, does not require the filing of an amended petition provided the initial petitioner remains the alien's employer and, provided further, the supporting labor condition application remains valid.”
At the last Stakeholder Engagement Meeting on April 27, 2011, CSC advised that the issue of what constitutes a “material change” to necessitate an amended petition under these circumstances is being reviewed by USCIS. We respectfully request that the CSC provide an update and its current interpretation of the definition of “material change,” as these NOIRs appear in opposition to longstanding USCIS policy and AFM instruction.
A. USCIS regulations at 8 CFR 214.2 require an amended or new petition to
reflect material changes in the terms and conditions of an H-1B petition.
USCIS is currently conducting a policy review of all H-1B guidance,
including the material change issue, and will issue new guidance.
Generally, it is the position of CSC Counsel that an amended H-1B petition should be filed if an LCA is filed after approval of an H-1B petition.
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