Articles on New or Amended H1B Petitions After Material Change in Terms/Conditions of Employment

Whenever there is a change to the terms or conditions of an H1B nonimmigrants employment that materially affects his or her eligibility for H1B classification, the H1B petitioner is required to file a new or amended H1B petition with the United States Citizenship and Immigration Services (USCIS) to account for the change. It is important to note that new or amended petitions are not required for advising the USCIS of immaterial changes to the terms or conditions of H1B employment.

In some cases, it may not be immediately evident whether a change is material and triggers the new or amended petition requirement. Most of the guidance on the issue has been developed since 1992, first by legacy Immigration and Naturalization Service (INS) and subsequently by the USCIS. One of the most important developments on the new or amended petition requirement came from the USCIS's top appellate body, the Administrative Appeals Office (AAO), in the form of its immigration precedent decision in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015). In that decision, the AAO determined that any change in the place of an H1B worker's employment that necessitates the filing of a new Labor Condition Application (LCA) with the U.S. Department of Labor (DOL) constitutes a material change which requires a new or amended H1B petition. The USCIS subsequently developed guidance for implementing the Simeio precedent.

On site, we have a growing collection of articles discussing what constitutes a “material change” in the terms or conditions of H1B employment and the new or amended petition requirement more generally. Below, you will find an index of our articles with links and short summaries. We will update this index as new articles are posted.

“New or Amended H1B Petitions after Material Change to Terms or Conditions of H1B Employment” [see article].
This article provides a general overview of the new or amended petition requirement and specific scenarios that constitute a “material” change in the terms or conditions of H1B employment. It also provides links to our more detailed articles on issues stemming from the Simeio decision. Those interested in the subject of new or amended H1B petitions should begin with this article.

“Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015): Worksite Changes and New/Amended H1B Petitions” [see article].
This article discusses in depth the AAO's decision and reasoning in Matter of Simeio Solutions. It provides the most detail on why the AAO crafted its new rules on worksite changes. Our article on USCIS's implementing memo (see below) provides more in-depth guidance on what the decision means for H1B employers.
(Note: See section on USCIS's addressing a footnote from the decision on a different point regarding the requirement that attestations on an LCA “must correspond to and support the [H1B] visa petition.”)

“USCIS Memo on New or Amended H1B Petitions after Worksite Changes (Under Simeio Solutions)” [see article].
This article discusses the USCIS's implementation of the Simeio decision. For understanding the current rules regarding worksite changes and new or amended petitions, our article on the USCIS memo provides the most in-depth guidance on what the decision means in practical terms.

“DOS Guidance for Consular Officials on New or Amended H1B Petitions and Worksite Changes (Under Matter of Simeio Solutions)” [see article].
This article discusses DOS guidance for consular officers on the Simeio decision. This comes into play if an H1B worker needs to be issued a new visa after a short trip abroad.

“H1B Short-Term Placements” [see article].
The USCIS's implementing memo for the Simeio decision makes clear that H1B short-term placement scenarios outlined in DOL regulations do not necessitate the filing of a new or amended H1B petition. In this article, we take a comprehensive look at the DOL regulations on H1B short-term placements and discuss how these rules interact with the USCIS's new or amended H1B petition rules.