When is an H-1B Visa amendment necessary?
If you have foreign workers in your California facility who were brought in on an H-1B visa, you may need to file an amendment if a material change occurs. The U.S. Citizenship and Immigration Services defines this as an adjustment in the original conditions of the visa. However, over the years, there has been a great deal of confusion over what qualifies as a material change. A recent decision made by the USCIS Administrative Appeal Office seeks to clarify when an amendment should be filed.
A location change may be considered material in some cases, depending on the existing Labor Condition Application for Nonimmigrant Workers. This document attests that you will pay the employee the prevailing wage for the geographic area of the jobsite. When the jobsite changes and the prevailing wage is no longer the same, a new LCA is necessary and the petition must be amended. However, when your employee works at off-site locations, but there is no change in the chain of command or payroll, it is not considered a material change.
Wage increases are not always considered material changes. For example, you may promote the employee without an amended petition as long as the new position is not significantly different, even though there is a salary increase. When there is a change in the job duties so that the employee is no longer using the specialty knowledge listed on the original application, the dramatic change in responsibilities is generally grounds for an amendment.
While the above information should not be taken as legal advice, it may help you gain a better understanding as to when you may need to file a petition amendment.