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  Frequently Asked Questions  
 
When is an amended H-1B petition required?

H-1B petitions are filed by an employer for a specific occupation and location(s), and the approval notice is issued for this employment. If a material change in the employer/employee relationship occurs that requires an amended petition, and none is filed, it could be determined that the employer is not in compliance and/or that the employee is not working as authorized.

All clients are advised in the petition approval letter that they should contact our office prior to making any changes in the employment that could be considered material. Generally, we then ask for a copy of the new job description or pertinent information, so that the change(s) can be evaluated and the attorney can provide his/her recommendation as to whether an amended petition, reposting of the LCA notice and/or update to the Public Access File must be done.

The following are considered material changes that generally require an amended petition:

(1) A change in job duties that would result in the position being classified under a different standard occupational code, or where the nature/focus of the duties is quite different than that stated in the H-1B petition. For example, a physician/scientist admitted to perform laboratory medical research, who now seeks to provide clinical care.

(2) Anytime a new labor condition application is required by the DOL, such as when the H-1B worker is assigned to a location in an area of employment not listed on the original LCA. For example, an engineer authorized to work in Los Angeles who will now work from an office in San Diego.

The following changes in employment generally do not require that an amended petition be filed:

(1) A change in job title without significant change in job duties;

(2) Minor changes in job duties that do not affect the basic requirements of the job being performed by the H-1B worker;

(3) A promotion to a higher position within the same occupation - i.e., a promotion of an accountant to a senior accountant may not require an amended petition, but a promotion from accountant to accounting manager (a different occupation) would generally require an amended petition; (Note: Even if an amended petition is not required, a promotion generally requires that the LCA Public Access File, including prevailing wage documentation, be updated.)

(4) A change in salary, unless the change is so dramatic that it indicates a significant change in responsibility or duties;

(5) Assignment to a new location within the same area, for which a new LCA is not required (i.e., only a new posting is required under DOL rules) e.g., a work site change from Santa Monica to downtown Los Angeles;

(6) The employer's name changes but the underlying nature or terms of the H-1B employment does not;

(7) The employer is involved in a corporate restructuring, including but not limited to a merger, acquisition, or consolidation provided the new entity assumes all of the obligations and rights of the predecessor companies, and the terms and conditions of the H-1B employment remain the same.


What is an amended petition?

An amended petition requires all of the same paperwork required for a new H-1B petition i.e., analysis and determination of the appropriate standard occupational code (SOC), prevailing wage analysis and research, preparation and processing of a Labor Condition Application and the required supporting documentation (e.g., wage memorandum), and preparation/filing of the H-1B petition with appropriate filing fees. Government agency filing fees for an amended petition with an extension of status (work authorization) for the individual are $1,685. If the petition is amended but the status of the individual is not extended beyond the expiration date on the current I-94, then the filing fees are $185. (Premium processing service is extra.)



 
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