Changes in Employment: Amended Petitions

The INS must be informed of material changes in the employment approved by the INS in the initial petition. When material changes occur requiring INS notification, a new or amended petition must be filed with the INS

When are we amended petitions required?

An amended petition is required when the following material changes occur:

• The job duties of the H-1B worker change significantly to the extent the duties are no longer those of the position identified  on the original petition and the supporting LCA-state differently the changes in duties arises to the level of a change in the specialty occupation., e.g. a physician is admitted to teach or conduct medical re-search and then seeks to provide clinical care.

• A new labor condition application is required by the DDL, such as when the H-1B worker is assigned to a location in an area of employment not listed on the original LCA or when there is a change in the employer's tax identification number ( note that a new petition and not an amended petition is required if the change in the employer's tax identification number can be attributed to a change in the corporate structure of the petitioner resulting in the creation of a " new employer " for H-1B purpose or the alien is transferred to a different legal entity within the same organization as discussed below)

The following changes in employment 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 provided that the alien is required to utilize the same academic training as was required in the former position, e.g., a promotion of an accountant to a supervisory accountant would not require amended petition because supervisory accountant would still be required to possess the theoretical knowledge of accounting normally possessed by an H-1B accountant.

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 for which  a new LCA is not required (i.e., only a new posting is required under DOL rules)

6. A transfer from one branch to another branch of the same firm (a branch of the firm is not considered to be a separate entity from its parent company)

7. A change in the petitioner's name

8. A petitioner's stock has been acquired (i.e., through an acquisition), and:

   • It is only ownership of the petitioning entity that has changed,

   • the petitioning entity continues to be alien's employer and there is no change in its tax identification number; and

   • the new owner assumes all of the previous owner's duties and liabilities, including those  of the prior owner relating to the LCA.

9. A change in corporate structure resulting from a consolidation of one or more companies into another company( this change differs form a merger in that one company survives a consolidation while a merger result in the creation of a new legal entity) provided;

   • the "surviving" entity assumes substantially all of the assets and liabilities of the employer which filed the Original petition , and

   • the "surviving" entity has the same tax identification number as the employer which filed the original H-1B petition  

Special note regarding changes in corporate structure and transfers

  Note that if the changes in the corporate structure results in the creation of a "new employer" for H-1B purposes or the alien is transferred to a different legal entity with in the same organization, a new petition ( as opposed to an amended petition) must be filed. If a "new employer" is not created by the change in the corporate structure but there is a change in the employer's tax identification number, an amended petition is required. In practice, the difference between an amended petition and a new petition relates mainly to the level of documentation  that must be submitted with the application. If  neither a new employer is created for H-1B purpose nor is a new LCA required because of a change in the employer's identification number, neither an amended petition nor a new petition is required. In these cases, the change may be reported in the extension request.

For further information, send your query to Aparna Davé.