H-1B Amendment

H-1B Amendment to foreign nationals’ visas can require exacting attention to detail in ensuring inadvertent changes in the assignment, or transfers to a different work site, do not constitute a “material change” that could require a submitting a petition to amend the employees’ H-1B Visa. If your business sponsors foreign nationals to work in domestic job sites, you need to become familiar with the circumstances that will require a H-1B Amendment.

What are the Requirements for an H-1B Visa?

In 1990, Congress reclassified the existing H-1 Visa for foreign national workers with special areas of expertise to the H-1B Visa. Most H-1Bs are awarded to technology workers, though other fields such as science and medicine also use the program. According to the U.S. Citizenship and Immigration Services (USCIS), nearly 70 percent of these visas in the last decade have been issued to Indian nationals.

Each year, the USCIS issues 65,000 H-1B visas to applicants with bachelor's degrees for "specialty occupations." Another 20,000 are set aside for those with master's degrees or higher from a U.S. university. Once approved, an H-1B visa allows employees to stay and work in the U.S. legally for up to three years. After those three years, the visa can be renewed for up to six years.

An H-1B visa is the most common way for employers to sponsor professional workers in the U.S. In order to qualify for sponsorship, the employee must hold a position that requires at least a bachelor’s degree or equivalent experience in the field.

How to Petition For An H-1B Visa

Employers must file the petition for the visa on behalf of employees, who are not allowed to self-petition, and cannot petition more than six months before new employees’ start dates. Every company must petition for H-1B visas that are made available every April 1 and the visas are effective beginning Oct. 1.  They are processed on a first come, first served basis.

H-1B visa holders can bring immediate family members (their spouse and children under 21 years of age) to the U.S. under the H-4 Visa category as dependents.

Before filing an initial petition, every company must file a Labor Condition Application (LCA) with the U.S. Department of Labor. The LCA is a series of statements that attest to the fact that hiring the H-1B employee will not adversely affect any U.S. citizen workers. This includes the following statements:

  • The employee will be paid the average wage for the role;
  • The employee will receive the same benefits as others in the role;
  • The employee will not negatively affect the working conditions of other employees;
  • There is no active labor dispute or work stoppage in place at the time of hiring the employee.

Within 24 hours of filing, the LCA must be made available in a Public Access File to any member of the public who requests it, meaning the H-1B employee’s wage is obtainable by anyone.

LCA Amendment: 2015 Simeio Solutions Ruling

In 2015, Simeio Solutions of Long Beach, Calif., filed an H-1B petition on behalf of a foreign national who it had employed in its F-1 optional practical training (OPT) program, which provides foreign students temporary employment that is directly related to his or her major area of study. 

The worker would be employed at Simeio Solutions’ office and would exclusively provide services to a specific company client. The petition was initially approved and the worker was accorded H-1B Visa status.

Upon further review, however, a consular officer was not satisfied with the worker’s visa interview, nor the evidence that was presented supporting the application. The petition was eventually sent to the U.S. Citizenship and Immigration Services (USCIS) for more extensive review. The USCIS concluded that a new Labor Condition Application (LCA) and amended petition were required because the changes in the applicant’s work placement was a “material change.” It revoked the H-1B petition.

The USCIS launched an investigation that included a site visit of Simeio Solutions. The agency found that the worker had been moved to various projects in other Metropolitan Statistical Areas (MSAs) after receiving H-1B status.

Ruling: Work Site Change Is A ‘Material Change’

The worker appealed to the USCIS’ Administrative Appeals Office (AAO), which upheld the agency’s determination that changes in the applicant’s work placement was a “material change” requiring a new LCA.

The AAO decision confirmed that a foreign national with an H-1B Visa status must seek a new LCA if he or she relocates to a new place of employment, or a new job site, that is different than the one listed on the application. Such a move is a “material change,” the AAO clarified.

A new LCA is needed if a new worksite is not within “normal commuting distance” or within the same MSA indicated on the existing LCA, the AAO further ruled.

The definition of a relocation to a new job site as a “material change” that would require an amended petition was not a new requirement but was a clarified reaffirmation of an existing one.

Businesses that employ H-1B status workers should recognize that this ruling could affect them, especially if employees routinely move to different job sites. Do a careful review of practices and procedures to make sure these workers remain within “normal commuting distance” and stay within the same MSA listed on their LCA.

What Are The Advantages Of An H-1B Visa?

Compared to other visas, the H-1B visa is quick and easy to get for qualified workers. Once the petition is approved by the USCIS, the worker can legally work and live in the U.S. as a non-immigrant. H-1B status also allows them to travel freely both internationally and domestically without need for Advance Parole or an Employment Authorization Document (EAD). This travel must be within the valid dates of the visa.

Another perk of H-1B status is dual intent. Under the dual intent doctrine, a person can seek permanent residency while already residing and working in the U.S. Children, spouses, and family members also become eligible for permanent residency under dual intent. Even when family members are trying to get permanent residency, this doesn't affect your H1 or their H4 status.

H-1B status also allow a worker to:

  • Purchase a home, real estate, or other property
  • Invest in mutual funds, stocks, commodities, futures, etc.
  • Go on vacation
  • Take maternity, paternity, and sick leave
  • Go on strike
  • Purchase lottery tickets
  • Become inactive or unemployed if you are in the process of applying for a green card

How Much Does an H-1B Visa Cost?

Employers pay for the H-1B Visa petition. Costs vary based on the size of the company. The USCIS charges:

  • Employers with 1 to 25 full-time workers -- $320 base fee, $750 American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee, $500 fraud fee and $1,000 optional premium processing fee. Total cost ranges from $1,570 to $2,570
  • Employers with 26 or more full-time workers -- $320 base fee, $1,500 American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee, $500 fraud fee. $1,000 optional premium processing fee. Total cost ranges from $2,320 to $3,320

Checking Status of H-1B Visas

The USCIS is the official governing body and processor of H-1B visas. If you have already applied for an H-1B Visa on behalf of a foreign worker, you can check the status of the application by checking with the USCIS website. The USCIS uses the H-1B Visa Status Tracking System to determine the status of your application.

To use the website, you need the 13-digit alphanumeric receipt number that you received when filing. This receipt number starts with WAC, EAC, SRC, or LIN, which signifies the service center where the application is being processed. If you do not have the receipt number, contact your employer or sponsor to get it. To check the status online:

  • Go to the USCIS Case Status Search.
  • Enter the 13-digit receipt number correctly without spaces. The number isn't case sensitive.
  • Click on Check Status.
  • Get the information and sign up for email notifications.
  • The USCIS maintains detailed record of processing times. For quicker status updates, applicants must also have: Classification or basis for filing, the correct processing center, petition and form type.

What is an H-1B transfer?

Essentially, a transfer is just a new H-1B application with a new employer – the previous employer has nothing to do with the transfer and doesn’t even have to know about it. The term ‘transfer’ is something of a misnomer because nothing regarding the visa holder is transferred per se, except the person. In essence, an H-1B transfer occurs when an H-1B visa holder changes employers and a new employer files a new H-1B application. In order to qualify for a transfer, the H-1B visa holder must be:

  • Lawfully admitted into the U.S.
  • One whose new employer has filed a non-frivolous petition for new employment before the expiration date of the existing visa
  • One who has not been employed without authorization

H-1B transfers do not count toward the annual H-1B quota and can therefore be filed anytime.

H-1B visa holders are not required to get permission or even tell their current employer that they want to change companies. The employee does not have to wait until the transfer petition is approved to start working (the application only has to be filed). More than one company can be competing for the H-1B visa holder, but the employee can ultimately work for only one employer.

The H-1B Visa Transfer Process – in Brief

If an H-1B visa holder wants to work for a new employer, and that employer is willing to file an H-1B visa application for that employee, no one is required to inform the current employer. The H-1B visa transfer process is essentially a new application with a different employer. When the company files for an H-1B transfer application, the following supporting documents will be required:

  • The last three paystubs through the current employer
  • Copy of the existing H-1B visa
  • Copy of the visa holder’s passport
  • Copies of the employee’s I-94 records
  • Copy of their latest resume
  • Copy of the employee’s earned degrees
  • Copy of social security card (if applicable)

Immigration Law Is Complicated

U.S. immigration law can be quite complicated, with a great deal of nuance and caveats, which is why hiring a lawyer to help can be useful. A consultation with a lawyer can also help clarify which visa type may be right for you to pursue.

For a general idea of how complex U.S. immigration can be, consider that the Immigration and Naturalization Act (the INA), which is in charge of immigration regulation, brings 675,000 permanent immigrants to the U.S. per annum. Sometimes, this limit is extended to accommodate immediate family members of U.S. citizens and residents.

Before you begin the process of submitting a H-1B Visa on behalf of a foreign worker, it is important that you consult with an immigration law attorney, such as those listed in UpCounsel’s directory. UpCounsel’s legal experts also offer advice on how much it costs to sponsor workers in the H-B1 Visa program and how to expedite the process.

If you have questions about immigration law or H-1B visas, you can post your job on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.