Q: One of our US employees is on an H1-B visa. We want him to fill another role for two and a half days per week. This new set of duties will be in the same SOC code. Do we need to inform USCIS about the change?
A: After a USCIS Administrative Appeal Office (AAO) decision in 2015, employers are under the obligation to file a new or an amended H-1B petition with the USCIS, if there is any material change that could impact an employee’s eligibility for an H1-B visa. The amended petition may be filed after such change has taken place, however, the decision does not provide any generally applicable guidelines as to what constitutes a “material change”. Examples given by the USCIS AAO include, but are not limited to:
- Substantial changes in the employment terms and conditions;
- Transfer of the employee concerned to another worksite location, other than the “area of intended employment” as specified in the current H1-B visa, or outside the metropolitan statistical area (MSA).
These changes would normally require the submission of a new or amended H1-B petition to the USCIS and a new Labour Condition Application for Nonmigrant Workers (LCA) to the Department of Homeland Security.
Therefore, employers are advised to contact the USCIS directly, or consult a US-based lawyer, in order to determine whether they need to file a new or amended H1-B petition in this situation.