Introduction

If there is a change in the terms or conditions of H1B employment that would materially affect an H1B worker’s eligibility for H1B classification, the H1B petitioner must file a new or amended H1B petition to account for the change. In this article, we will review guidance dating back to 1992 on the issue of when a new or amended H1B petition is required. However, we cover the issue of when a work site change necessitates a new or amended H1B petition in more detail in a separate article [see article].

Sources

In addition to the statutes and regulations, we will rely heavily on selected administrative guidance documents from legacy Immigration and Naturalization Service (INS) and its successor, the United States Citizenship and Immigration Services (USCIS) (as part of the Department of Homeland Security (DHS)).

On August 22, 1996, T. Alexander Aleinikoff, the then-Immigration and Naturalization Service (INS) Associate Commissioner for the Office of Programs, published a policy memorandum numbered HQ 70/6.2.8-P and titled “Amended H-1B Petitions” (“Aleinikoff Memo”) [PDF version]. The memo was republished at 75 No. 35 Interpreter Releases 1222 (Sep. 16, 1996). Interpreter Releases described the Memo as following up on an October 22, 1992 memo issued by then-INS Associate Commissioner for Operations James J. Hogan (CO 214h-C/CO 214L-C) (“Hogan Memo”) (discussed and reprinted in 69 No. 43 Interpreter Releases 1439 (Nov. 9, 1992)) and “basically restat[ing]” instructions from the 1992 memo.

The Aleinikoff Memo began by stating that its purpose was “to recap the current Service position regarding the filing of amended petitions within the H-1B classification.” Associate Commissioner Aleinikoff acknowledged that the information had been previously published in the Hogan Memo.

The 1996 Aleinikoff Memo, which discussed rules for when an amended H1B petition is required due to a material change in the terms or conditions of H1B employment, was cited favorably by the AAO in the immigration precedent decision Matter of Simeio Solutions,LLC, 26 I&N Dec. 542, 547 & n.7 (AAO 2015) (“Simeio”) [PDF version] [see article]. Simeio set forth rules for when a new or amended H1B petition is required after an H1B employer changes the place of an H1B employee’s employment. However, the AAO stated that the decision only “clarified” previously issued rules about when a new or amended decision is required, and it did not move away from previous guidance, citing specifically to the 1996 Aleinikoff Memo. While we will address Simeio briefly in this article, we have a separate article discussing new or amended H1B petitions under that important precedent [see article].

Although parts of the Aleinkoff Memo have been superseded, most of it remains good guidance.

Regulatory Background

8 C.F.R. 214.2(h)(2)(i)(E) states that a new or amended H1B petition (with fee) is required “to reflect any material changes in the terms or conditions of employment or training or the alien’s eligibility as specified in the original approved petition.” 8 C.F.R. 214.2(h)(11)(i)(A) further clarifies that the petitioner is required to immediately notify the USCIS “of any changes in the terms or conditions of employment of a[n] [H1B] beneficiary which may affect eligibility under section 101(a)(15)(H) of the [Immigration and Nationality Act] and [8 C.F.R. 214.2(h)].” In such cases, an “amended petition should be filed.” Under 8 C.F.R. 214.2(h)(19)(v)(A), the ACWIA fee is not required for amended petitions which do not include requests for an extension of stay (although the general Form I-129 fee is required).

8 C.F.R. 214.2(h)(2)(i)(E) adds that the amended or new petition “must be accompanied by a current or new Department of Labor determination.” In the H1B context, this “includes a new labor condition application” (LCA).

The USCIS’s Adjudicator’s Field Manual (AFM) provides guidance on filing amended petitions at section 31.2(b)(4). It reiterates that amended petitions require the same filing fees as new petitions. However, in the case of an amended petition, “documentation does not have to be duplicated…” This is because the amended petition “supplements,” rather than replaces, the original petition. Amended petitions must, however, “be accompanied by evidence addressing the change which necessitated the filing of the amended petition.”

Only “Material” Changes in Terms or Conditions of Employment Necessitate New or Amended H1B Petition

The Aleinikoff Memo, like the Hogan Memo, focused on providing “general policy guidelines relating to the requirements for the filing of amended or new petitions for H nonimmigrant petitions.” Specifically, by regulations, an H1B petitioner must file a new or amended H1B petition “when there is a material change in the terms and conditions of employment which affect the beneficiary’s eligibility for the H-1B classification.” Thus, the regulations only require new or amended petitions when the change is “material,” that is, when it affects the beneficiary’s continuing eligibility for H1B classification. Accordingly, Aleinikoff explained that “[t]he amended petition procedure was not devised as an avenue to advise the Service of minor, immaterial changes in the conditions of the alien’s employment which do not affect the alien’s eligibility for [H1B] classification.” However, while new or amended H1B petitions are not needed for “minor [or] immaterial changes in the conditions of the alien’s employment,” Aleinikoff explained, these minor changes should be included in applications for extension of H1B stay.

At AFM 31.2(e), the USCIS makes clear that “[t]he amended petition procedure was not devised merely as an avenue to advise USCIS of minor changes in the conditions of employment or the beneficiary’s eligibility.” Instead, petitioners should only advise the USCIS of minor, immaterial changes “when extensions of the beneficiary’s stay are filed.”

On August 29, 1995, then Chief of the Nonimmigrant Branch at the INS’ Office of Adjudications, Yvonne M. LaFleur, responded to a question regarding when a promotion constitutes a “material change” in H1B employment. (Reprinted at 72 No. 45 Interpreter Releases 1578 (Nov. 20, 1995).) Presented below are the facts of the scenario presented:

H1B employee was a loan administrator for three-year period at a salary of $27,000;
After one year, the employer sought to employ the H1B employee as a finance administrator; and
Employee would mostly perform the same duties, but assume additional advisory and supervisory responsibilities and be paid $35,000 annually.

LaFleur noted that each determination of whether a change is “material” must be made on a case-by-case basis. However, as a general matter, she stated that “a promotion to a higher position within the same occupation would not normally require the filing of an amended petition provided that the alien is required to utilize the same academic training as was required in the former position.” (Emphasis added.) LaFleur stated that the scenario provided by the attorney would most likely not require an amended petition because the H1B employee would be utilizing the same training and knowledge in his or her supervisory role as in the original role.

New Employer Must File New Petition

Aleinikoff explained that, when the beneficiary is transferred from one U.S. employer to a new U.S. employer, the new employer must file an H1B petition. Here, it is important to note that the Aleinikoff Memo was written before the enactment of AC21 [see category], which provided for H1B portability. To learn about the current H1B portability rules, which also address employment while a new or amended H1B petition is pending, please see our full article on the subject [see article].

Section 31.2(e) of the USCIS’s Adjudicator’s Field Manual (AFM) states that a new or amended petition is required “[w]hen a beneficiary is transferred from one employer to another…” It adds that this “ensures that the new employer is liable for the alien’s return transportation abroad and that the employer files a[n] [LCA].”

New or Amended Petition Required When H1B Employee is Transferred from One Entity to Another Within Same Organization

The Aleinikoff Memo stated that a new or amended petition should be filed “[w]hen a beneficiary is transferred from one entity to another entity within the same organization if the new entity becomes the beneficiary’s United States employer,” as “employer” is defined in regulations.

Under current regulations at 8 C.F.R. 214.2(h)(ii), a U.S. employer “means a person, firm, corporation, contractor, or other [U.S.] organization … which: (1) Engages a person to work within the United States; (2) Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee; and (3) Has an Internal Revenue Service Tax identification number. We discuss the current rules for employer-employee relationships in a separate article [see article].

AFM 31.2(e) states that an amended petition is required “[w]hen a beneficiary is transferred from a firm to another firm within the same organization, and the new firm becomes the beneficiary’s employer.” However, a transfer “from one branch of a firm to another branch of the same firm…” does not necessitate a new petition because “[a] branch of a firm is not considered to be a separate entity from its parent company.”

Transfer of Employee to Another Work Site

The Aleinikoff Memo then addressed the transfer of an H1B employee to a new worksite. Here, Aleinikoff wrote that the mere transfer of an H1B employee to a new worksite does not require a new or amended H1B petition under the following conditions:

The initial petitioner remains the alien’s employer; and
Provided further, the supporting LCA remains valid.

Aleinikoff specified that an a new or amended H1B petition is required “in a situation where the beneficiary’s place of employment changes [after] the approval of the petition and the change invalidates the supporting [LCA].”

However, as we have discussed, the AAO has subsequently clarified in Simeio when a new or amended H1B petition is required after a change in worksite. While Simeio does not contradict the Aleinikoff Memo, the new USCIS guidance on worksite changes should be consulted by employers since it provides important further clarification of the issue. For the most comprehensive guidance on this subject, please see our full article on the USCIS Memo implementing the Simeio decision [see article].

Under 20 C.F.R. 655.735(c), an H1B employee may be temporarily placed at a new worksite for up to either 30 or 60 days each year without requiring a new LCA. In these short term placement cases, an amended petition is not required. To learn more about short term placement rules and scenarios, please see our full article on the subject [see article].

New or Amended Petition Not Required Due Solely to Petitioner Name Change

The Aleinikoff memo provided that a petitioner does not need to file a new or amended H1B petition merely because the petitioner changes its name. A new or amended petition would only be required if there was some other material change to the terms or conditions of the beneficiary’s employment by the petitioner. However, the Memo added that the petitioner should advise the [USCIS] of its name change if and when it files to extend an H1B beneficiary’s stay. Presumably, if the petitioner must file a new or amended petition due to a material change in the terms or conditions of the H1B beneficiary’s employment, it should also advise the USCIS of its name change in that filing.

Changes in Ownership Structure Do Not In and of Themselves Require New or Amended Petition

A change in the ownership structure of the petitioning entity does not, in and of itself, require the filing of a new or amended H1B petition. Aleinikoff wrote that a change in ownership structure will generally not necessitate a new or amended H1B petition provided that the following points are true:

The petitioning entity continues to be the alien beneficiary’s employer;
The new owner(s) of the petitioning entity assume the previous owner’s duties and liabilities, including those relating to the filing of the LCA.

The duties and liabilities relating to LCAs are found in section 212(n) of the INA.

In early 1997, then-Acting Chief of the INS’s Business and Trade Services Branch, John W. Brown, addressed a scenario in which one corporate entity buys a number of other identities and consolidates them into a single entity to operate under one of their names. (Reprinted in 74 No. 4 Interpreter Releases 188.) Brown stated that, in general, an amended petition would not need to be filed based solely on the corporate merger described. However, he added that the entity should notify the INS (now DHS) of the change in any applications for extension of stay of affected aliens.

Change in Statute Subsequent to Aleinkoff Memo on Mergers: New or Amended Petition Generally Not Required

If the petitioning employer merges with another form to create a third entity which will then be the employer of the H1B beneficiary, Aleinikoff stated that the third entity must file a new or amended petition. Aleinikoff explained that this is because “the merger has created a new legal entity, and therefore, a new employer.”

However, the rule is different today due to section 214(c)(10) of the INA, which became law in 2000. Under this statute, amended H1B petitions are not required “where the petitioning employer is involved in a corporate restructuring, including but not limited to a merger, acquisition, or consolidation, where a new corporate entity succeeds to the interests and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the employer.” (Emphasis added.).

Under 20 C.F.R. 655.730(e), the new employer is not required to submit a new LCA “provided that the new employing entity maintains in its records a list of the H-1B nonimmigrants transferred to the employ of the new employing entity…” It must also maintain in its records:

[Click image to view full size]

However, the new employing entity is required to file new LCAs and H1B petitions when it seeks extensions of H1B status for existing H1B nonimmigrants, and it may not use existing LCAs “to support the hiring or extension of any H-1B nonimmigrant after the change in corporate structure. See 20 C.F.R. 655.730(e)(2).

Then INS-Director for Business and Trade Services Efren Hernandez discussed these rules in a response to a question from an immigration law firm dated June 7, 2001. (Reprinted in 78 No. 27 Interpreter Releases 1171 (Jul. 16, 2001).) Hernandez noted that under then-INS rules based on the new statute, successors in interest are not required to file new or amended H1B petitions, provided that no material change to the terms or conditions of the employment of the H1B beneficiary or beneficiaries occurred. He clarified that successors in interest in this context pertains solely to immigration liabilities. However, he noted that if new LCAs are required under Department of Labor (DOL) regulations, then new or amended H1B petitions are required. He made clear that the DOL is responsible for the LCA process and that it may enforce its rules independently of the INS (now DHS): “You should note[,] however, that DOL is free to attach whatever consequences it chooses to as it exercises its authority. The fact that there may not be an INS consequence to an action does not guarantee that there will not be a DOL-imposed consequence.” In one interesting note, Hernandez advised that successors in interest consider filing an amended petition for any H1B employees who wish to travel. This is because “the INS cannot issue documentation reflecting the alien workers’ H-1B status for the new employing company.” However, not doing so would not render the H1B beneficiary ineligible to reenter the United States if he or she is otherwise eligible.

Change in Alien’s Duties from One Specialty Occupation to Another Requires New or Amended Petition

If the alien’s duties are changed from one specialty occupation to another specialty occupation, the petitioner must file a new or amended H1B petition. Aleinikoff provided an example of such a case: “[A]n alien physician admitted to the United States to teach or conduct medical research must have an amended petition filed in his/her behalf in order to provide clinical care.” AFM 31.2(e) lists “[a] change of the alien’s duties from one specialty occupation to another” as one scenario that would require an amended petition.

However, it is important to reiterate that not every change in duties will necessarily require a new or amended H1B petition. The pertinent question is always whether the change in duties materially affects the H1B beneficiary’s eligibility for H1B classification. In some cases, such as the example provided above, the change clearly materially affects the beneficiary’s eligibility for H1B classification. However, in other cases, whether a change in duties is material may not be as clear. Aleinikoff concluded by stating that “[w]hether a change in duties rises to the level of a change in specialty occupation depends on the specific circumstances of each case.” Thus, like many questions in immigration law, the answer is fact-specific, depending on “the specific circumstances of each case.”

“Dormant” H1B Petitions

In cases where an H1B beneficiary has an approved H1B petition, ceases working for that employer but maintains H1B status while working for a different employer, and subsequently returns to the original employer, a new or amended H1B petition is not required absent other material changes to the terms or conditions of the beneficiary’s employment. Efren Hernandez made clear that this remained then-INS (now DHS) policy in a letter dated April 24, 2002. (Published at AILA InfoNet at Doc. No. 02051432 (Apr. 24, 2002)). In a letter written on September 15, 1996, Yvonne LeFleur took the position that “H-1B petitions remain valid until revoked by the INS or the petitioner goes out of business and files a written withdrawal of the petition.” (Reprinted in 73 No. 22 Interpreter Releases 764 (Jun. 3, 1996).) Regarding multiple employer scenarios and the maintenance of H1B status, John W. Brown wrote on July 18, 1997, that “[t]here is no limit on the number of hours that an H-1B nonimmigrant may work regardless of the number of jobs that he or she holds.” (Reprinted in 74 No. 30 Interpreter Releases 1219 (Aug. 11, 1997).)

Conclusion

The Aleinikoff Memo and other materials continue to provide useful guidance for when a new or amended H1B petition is required due to material changes in the terms or conditions of a beneficiary’s H1B employment. While the answer is sometimes clear, there are also situations where a petitioner may not be certain whether a change rises to the level of requiring a new or amended H1B petition. Due to the stakes involved, a petitioner should always err on the side of caution and consult with an experienced immigration attorney for case-specific guidance on whether a change in the terms or conditions of employment is permissible under H1B status and, if so, whether a new or amended petition is required because the changes are or may be viewed as material. In addition to providing guidance on those points, an experienced attorney will be able to assist an H1B petitioner in filing a new or amended H1B petition.

For guidance on the specific issue of when a change in employee worksite necessitates a new or amended H1B petition, please see our full selection of articles on the Matter of Simeio Solutions, LLC, decision [see index]. General information about H1B visas and other nonimmigrant work visas can be found in our growing work visas section [see category].

Resources and Materials

Kurzban, Ira J. Kurzban’s Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 945-47, Print. Treatises & Primers. [Note: Referenced for referrals to certain INS letters]