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H1B Amendment not filed

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asked Apr 18, 2017 by seekhelp (150 points)

Hi,

My employer has filed my H1B using letter from Client X, I worked with client X for some time. Now for last 1 year I am working with client Y, my employer has not filed amendment for client / location / salary change.

My 1st extension after 3 years is in Sept 2017. So will there be any issue if we file extension using letter from client Y and show that I was working there for last 1 year but not informed USCIS.

commented Apr 20, 2017 by dan (23,856 points)
If you are looking for a new employer, please contact h1btransfer@hireitpeople.com

1 Answer

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answered Apr 19, 2017 by dan (23,856 points)

You may get into serious trouble with this matter when you file an H1B Extension with the same employer. The best way is to move to another Employer who complies with H1B Regulations.

Recent updates and mandatory H1B Amendments 

Please ensure that your new H1B Employer complies with the H1B Amendment regulations while filing new LCAs and amending the H1B from time-to-time when there is a Material change with the H1B employment. Unfortunately, most employers have somewhat complied by filing LCAs but not filing H1B Amendments. If your Employer is not amending the H1B when there is a change, you may get into trouble or go out of status while working at a work site not authorized by USDOL/USCIS – THIS IS VERY IMPORTANT. 

Official Information

When H-1B employees change their place of employment to a worksite location that requires employers to certify a new Labor Condition Application for Nonimmigrant Workers (LCA) to the Department of Homeland Security, this change may affect the employee’s eligibility for H-1B status; it is, therefore, a material change for purposes of 8 C.F.R. §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).  When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H−1B petition with the corresponding LCA.  This precedent decision represents the USCIS position that employers are required to file an amended petition before placing an H-1B employee at a new worksite. USCIS will accept comments on the below draft guidance for a limited period of time.

When You Must File an Amended Petition

You must file an amended H-1B petition if your H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) or an “area of intended employment” (as defined at 20 CFR 655.715) covered by the existing approved H-1B petition, even if a new LCA is already certified and posted at the new location.

Note: Once you file the amended petition, your H-1B employee can immediately begin to work at the new location. You do not have to wait for a final decision on the amended petition for your H-1B employee to start work at the new location.

When You Do NOT Need to File an Amended Petition

A move within an MSA: If your H-1B employee is moving to a new job location within the same MSA or area of intended employment a new LCA is not required. Therefore, you do not need to file an amended H-1B petition. However, you must still post the original LCA in the new work location within the same MSA or area of intended employment. For example, an H-1B employee moving to a new job location within the New York City MSA (NYC) would not trigger the need for a new LCA, but you would still need to post the previously obtained LCA at the new work location. This is required regardless of whether an entire office moved from one location to another within NYC or if just one H-1B employee moves from one client site to another within NYC. 

Short term placements: Under certain circumstances, you may place an H-1B employee at a new job location for up to 30 days, and in some cases 60 days (where the employee is still based at the original location), without obtaining a new LCA. See 20 CFR 655.735. In these situations, you do not need to file an amended H-1B petition. 

Non-worksite locations: If your H-1B employee is only going to a non-worksite location, you do not need to file an amended H-1B petition. A location is considered to be “non-worksite” if:

The H-1B employees are going to a location to participate in employee developmental activity, such as management conferences and staff seminars;

The H-1B employees spend little time at any one location; or

The job is “peripatetic in nature,” such as situations where their primary job is at one location but they occasionally travel for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding five consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).” See 20 CFR 655.715.  

commented Apr 20, 2017 by vesaservices.com (1,132 points)

I totally agree with you Dan, he must move out to avoid H1B Extension denial, USCIS may even revoke H1B from day one for non-compliance.

Forms Preparation fee for H4 is $95.00, H1B (New/Extension/Transfer, Amendment) is $295.00 (includes Public Access file), H1B/I-140 RFE write-up Starts at $195.00, H4 EAD $95.00  and GREENCARD/PERM/I-140 starts at $500.00, check us out at www.vesaservices.com or email at aditya@vesaservices.com

commented Nov 9, 2017 by needhelp (100 points)

Hi seekhelp,

What happened to your extension. I am also in same kind of situation.

Did you change your employer? Hope your extension approved.

It would be great help if you can share your experience. Thank you!

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