USCIS reserves the right to conduct on-site inspections of an H-1B beneficiary’s workplace to ensure that the working conditions described in the H-1B petition that was filed are being adhered to. These visits are unannounced, and if the employer is found to be not in compliance, then the case may be referred to Immigration Customs Enforcement (ICE) for further investigation.  To avoid this, it is imperative that the working conditions described in the H-1B petition are closely adhered to. That doesn’t mean the beneficiary can’t receive a promotion, or work at a new location. If the terms of the beneficiary’s employment are changing, then the employer may be required to notify USCIS by filing an amendment petition. 

The amendment petition is filed the same way as the initial petition and must prove the position continues to qualify as a specialty occupation. A new LCA must be filed with the new job details and certified, with Notices of Filing posted in the applicable worksites. Since an extension petition cannot be filed more than six months before the I-94 expiration date, the amendment petition should include a short description of what changes are being made so USCIS understands why a new petition is being filed. 

An amendment petition can also include a request to extend the stay of the beneficiary for up to three years, if the beneficiary qualifies for an additional three years of H-1B status.  Therefore, the employer should be careful to provide all relevant job details that will be relevant for the duration of the petition. For example, if an employee will work at a new worksite for a year and a half but will return to the original worksite after that period, then the amendment petition should include both worksites on the LCA. This avoids having to file another amendment petition at the conclusion of the assignment.

When does my employer need to file and H-1B amendment petition?

Your employer needs to file an amendment any time there is a material change to the conditions of your employment that was filed in your last H-1B petition. Generally, this means a change in your work location, job duties, or wage. 

• Work Location: If you will be working out of a new location that is outside the Metropolitan Statistical Area (MSA) listed on the LCA in your prior petition, your employer may need to file and amendment petition. Outside of the MSA generally means “outside of normal commuting distance” or 30 miles. If you are working at a new location on a short-term basis, meaning 30 – 60 days annually, or not more than 10 consecutive days at any one time, your employer does not need to file an amendment petition. If your new location is within the MSA, your employer will just need to post the prior LCA at the new location for 10 business days.
  • Note: Your home is treated the same as a work site. If you can work from home, your address should be included on your LCA. If you are gaining the ability to work from home and you are within the MSA listed on your LCA, then you will post the LCA at your home for 10 business days. If you will work fully remotely and will move out of the MSA, your employer will need to file an amendment petition. 
• Job Duties: If you will be working in a new position or project where your job duties will be more than 50% different from the job duties described in your prior petition, your employer may need to file an amendment petition. This does not apply if your job title alone changes, or if you receive a promotion that is in line with your prior petition (for example, a promotion from Software Engineer 2 to Software Engineer 3). If your new duties will include supervising others, then an amendment may be necessary. 
• Wage: If you wage will be changing to one outside the range filed with your prior LCA, your employer may need to file an amendment. You cannot be paid less than the prevailing wage on the LCA filed in your prior petition. If this has been suggested, raise the issue with your employer immediately. There is no upper limit to how much your employer can pay you. 

What if I need to file an amendment, but I am running out of H-1B time?

As mentioned above, an amendment petition can also include a request to extend your stay for up to three years. Foreign nationals can only apply for 6 years of H-1B status, unless other requirements have been met. However, foreign nationals can “recapture” time that was spent outside the United States and extend their status. You will need to count the 24-hour periods spent outside the United States and provide documentation that shows when you exited and entered the United States. The best evidence is your CBP travel history and passport entry stamps, but these records are not always complete. Documentation can also include entry and exit stamps from other countries, boarding passes, hotel reservations, meal receipts, or anything else that proves that you were outside the United States for a full 24-hour period. Be careful to provide as much proof of you time outside the US as you can. USCIS can extend your status for as long as they feel you proved, they can issue an RFE asking for more documentation, or they can deny the extension. 

Not every change in employment merits an amendment petition. If you or your employer are unsure, talk to an immigration attorney.