Maintenance of H-1B Status
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      1. The White Paper for F1 Students
      2. H-1B
      3. Maintenance of H-1B Status

      H-1B Amendment

      This article explains the circumstances applicable to submitting an H-1B amendment application and the application process.

      Situations Requiring an H-1B Amendment Application

      1. Salary Changes: Conditional for Raises, Mandatory for Reductions

      Generally, standard salary raises do not need to be reported to USCIS unless tied to a position change, which requires an H-1B amendment.

      For salary reductions, the requirements are stricter—Your salary must not fall below the H-1B prevailing wage. If it does, it will affect your eligibility for H-1B. Even if the salary remains above the prevailing wage but is lower than initially reported, an amendment is still necessary.

      Note:

      Some employers use a salary range in the initial H-1B application. As long as the salary stays within this range, reporting is not required.

      2. Job Title Changes

      Not all job title changes need to be reported to USCIS. The key is whether the job duties change significantly. For example, changing from "Operation Analyst" to "Business Insight Analyst" without altering duties does not need to be reported. If there is uncertainty about duty changes, you may consult a lawyer.

      3. Changes in Working Hours

      Changing from part-time (under 35 hours per week) to full-time, or vice versa, is a significant change that must be reported. When changing from part-time to full-time, USCIS may scrutinize if the workload justifies the change. Discussing and preparing with an attorney is recommended.

      4. Company Ownership Changes: Distinguishing between Equity and Asset Acquisitions

      H-1B employees should pay attention to company mergers and acquisitions, which can impact their H-1B status. A change in shareholders does not need to be reported. However, an asset purchase where the original company ceases to exist requires action. Hence, it is necessary to provide proof that the acquiring company will assume H-1B responsibilities. You may need to consult with an experienced immigration attorney to ensure your eligibility for H-1B.

      5. Changes in Work Location: Depends on Distance and Purpose

      It refer to both the relocation of the company and the individual H-1B employee’s change of work location. In July 2015, USCIS launched new policies for reporting changes in work location:

      • It Requiring an amendment application: If the new work location is outside the original Metropolitan Statistical Area (MSA).

      • Requiring reposting of the Labor Condition Application (LCA), but no amendment application: If the new work location is within the original MSA.

      • No amendment application or LCA reposting required: For short-term training, events, or assignments. "Short-term" typically means up to 30 days, or 60 days in certain cases. Consulting an experienced immigration attorney for confirmation is recommended due to the complexity of this situation.

      How to determine if the new work address is within the same MSA?

      You can check on the United States Census Bureau website. Select your state and check the map. Areas within the same dark green circle belong to the same MSA.

      Caution:

      Above are common situations requiring an H-1B amendment. However, other scenarios may require case-by-case analysis. If there are changes in your position or salary, you should contact the company's HR or an immigration attorney promptly to confirm whether an amendment is necessary.

       

      How to Submit an H-1B Amendment Application?

      1. Employer Submits a New LCA: Before submitting an H-1B amendment, the employer must obtain a new LCA from the Department of Labor. The new LCA should reflect your new employment condition, such as work location, position, and salary. Once the LCA is certified by the Department of Labor, it can be used to submit the H-1B amendment.

      2. Employer Completes Form I-129: Fill out Form I-129 (Petition for a Nonimmigrant Worker), ensuring the "Amended Petition" box is checked. Attach the new LCA to the form.

      3. Prepare Supporting Documents & Pay Required Fees

      4. Submit the Application to USCIS

      5. Wait for the Result:

      • After submission, USCIS will send a receipt notice confirming they have received the application.

      • The processing time is generally 4-6 months.

      • Once USCIS makes a decision, you will receive an approval or denial notice.

      Note:

      Usually, you do not need to wait for the approval notice. Once you receive confirmation that USCIS has received the application, you can start working according to the new job requirements.

      6. Keep Records: Retain copies of all submitted documents, receipt notices, and all correspondence with USCIS for future reference.

      7. Standard Fees and Premium Processing:

      • Filing an H-1B amendment requires a fee of $460 for Form I-129.

      • Premium Processing is available for an additional $2,500, with a result provided within 15 business days.

      Note:

      H-1B amendment applications are typically handled and paid for by the employer. If the employer is unwilling to pay for premium processing, you can offer to cover this cost yourself to avoid delays.

       

      Q&A

      1. Is this step mandatory? What are the consequences of not doing it?

      In theory, whenever there are updates to your work information during H-1B that differ from the information initially provided, you need to report to USCIS promptly. If there are no significant changes, you can decide whether to report them. However, failing to report major changes mentioned above can result in receiving a Notice of Intent to Revoke, which may lead to the denial of future H-1B extension applications.

      2. How does USCIS verify my information?

      USCIS may conduct random site visits to verify that the H-1B holder's work condition matches the information submitted in the H-1B application.

      3. If my H-1B Amendment is denied, can I reapply?

      Yes, you can adjust your application based on the denial reasons and resubmit. You should consult an attorney for resubmission.

      4. Will a denial of the H-1B amendment affect my current H-1B status?

      No, it will not. However, you must revert to the previous work condition.

      5. Is H-1B extension submitted through this process?

      No, H-1B Amendment is for changes in job conditions, such as work location or position. An H-1B amendment cannot change your H-1B duration. To extend your work duration, you need to submit an H-1B extension application.

      6. What is the difference between an H-1B amendment and an H-1B transfer?

      An H-1B amendment is filed by the same employer when there are changes in the H-1B holder's job conditions. However, an H-1B transfer is required when the H-1B holder changes employers. Although both require Form I-129, their purposes and requirements differ.

      7. Do remote workers also need to submit an H-1B amendment?

      It depends on the details submitted in the H-1B application:

      • If the work address provided in the application is the employee’s home address, no amendment is required.

      • If the company address was provided and it is within the same MSA as the employee’s home address, no amendment is required. However, technically, the employer must post the LCA notice in the employee’s home for at least 10 consecutive business days. You also need to keep a photographic record and place it in a publicly accessible file.

      • If the company address provided is in a different MSA from the employee’s home address, an H-1B amendment is required.