Much has been discussed about the recent case Matter of Simeio Solutions where theAdministrative Appeals Office (AAO) indicated an H-1B amendment is requiredwhen an employee changes worksites from one metropolitan area to another. There are, however, other situations which requirethe filing of an H-1B amendment.
USCIS regulations indicate that an employer must file an amendedpetition to reflect any “material changes” in the terms and conditions ofemployment or training. While not filing an amendedpetition can subject both the employer and employee to penalties and liabilities,neither the USCIS or the DOL have defined “materialchange.“
Changes in employment which mayrequire an amended H-1B petition include:
- Change from full-time to part-timeemployment or vice versa
- Reduction in wages, particularlywhen it affects the prevailing wage
- Change of more than 50% in jobduties, for instance, Occupational Therapist to Director of Rehabilitation
Insignificant alterations in jobduties and normal incremental changes in the upward direction do not require anH-1B amendment. An H-1B amendment is notrequired for:
- Promotion when job duties aremostly the same, for instance, Physical Therapist to Senior Physical Therapist
- Regular merit-based or cost ofliving pay increases
- Moving to a new office in the samemetropolitan area
- Short-term placement at a new worklocation for less than 30 days per year
- Non-worksite locations, forinstance when an H-1B worker attends an professional conference
- Change in the employer’s name whennone of the terms and conditions of employment change
When an H-1B employee’s employmentchanges, please contact ouroffice. Together, MU Law and theemployer should decide if the change is material and if an H-1B amendment isrequired.