212-986-0947
info@richardnewmanlaw.com

News

Material Change in Employee’s Authorized Place of H-1B Employment

  • June 28, 2016
  • newman-admin

On April 9, 2015, the Administrative Appeals Office (AAO) decided Matter of Simeio Solutions, LLC (26 I&N Dec. 542). This was an important decision which states that when an H-1B worker changes their geographical place of employment (with the same petitioner) it constitutes a “material change” in the terms and conditions of employment. A “material change” is a change in employment which may affect the employee’s eligibility for H-1B status. Therefore, when there is a material change in the terms and conditions of employment, such as a change in work site location, the petitioner must file an amended or new H-1B petition with a new Labor Condition Application (LCA).

Previously, a geographic change in the location of employment with the same employer required a new LCA to cover the new place of employment and corresponding prevailing wage, but not a new I-129 petition. However, now under Matter of Simeio, the petitioner must file a new LCA plus new or amended I-129 petition with the U.S. Citizenship & Immigration Services.

The Dept. of Labor regulations define “place of employment” as the worksite or physical location where the work is actually performed by the H-1B worker.

When is an H-1B Amendment Required?

  • When an H-1B worker transfers from one work site to another.
  • When the job responsibilities change significantly, not matching the responsibilities listed in the original H-1B petition.
  • When the H-1B worker changes from part-time to full-time, or vice versa.
  • When the H-1B employer merges with another company to create a third entity, which will employ the H-1B worker.

When not to file an Amended H-1B Petition

  • When the petitioning employer changes the name of the company. Petitioner may report change of company name upon filing extension of H-1B stay for the employee.
  • When H-1B worker’s job title changes or gets a promotion, with no significant change in the employer’s job responsibilities.
  • When there is a change in ownership structure of the petitioning company.