HR Guide: When to file H-1B Amendment?
Updated: Nov 18, 2022
What is the H-1B visa?
The H-1B visa is a work visa issued by USCIS that allows foreign national employees to work for U.S. employers for a period of six years.
Who qualifies for an H-1B visa?
The H-1B visa is a "speciality occupation" work visa. This means that the job should require at least a bachelor's degree or equivalent experience to perform a role. For example, a computer engineer's role would be considered a speciality occupation but generally a sales representative's role won't be considered a specialty occupation because an employee could be successful in a sales role without a bachelor's degree.
What other basic things that should be considered when sponsoring someone for an H-1B?
Besides making sure that the job qualifies as a speciality occupation, the following things should be considered -
Work Location: Remote, In-Person, or Hybrid - This determines what Prevailing Wage the attorney recommends for the role. The Prevailing Wage is the minimum wage the employer must pay the employee. If the employee will work in a hybrid work setting - working from home and office - the prevailing wage has to be the higher of the two wages as determined for each location.
Education and Experience Requirement - The experience requirement for the role (and not of the candidate) determines which level of prevailing wage would need to be paid.
Prevailing Wage - Your immigration counsel is the best person to determine the Prevailing Wage associated with the position. As mentioned above, this wage determination depends on the location of work and the amount of education/experience the job requires. You can read this article to learn more about how to determine prevailing wage.
What is an H-1B Amendment?
While a foreign national employee is working with an employer on an H-1B, they are bound by their work address (remote or office) and the job position that initially determined the Prevailing Wage and was approved by USCIS to be a specialty occupation. Any change in one of these variables may require the employer to file an H-1B Amendment.
Please note that an H-1B Amendment will not extend the H-1B status of the employee. It merely provides an update to USCIS about the job changes and keeps the company under compliance.
When should an Amendment be filed?
Here are some simple scenarios that might provide context -
Scenario 1: Employee's work address has changed
If the employee moves to a new location, a new H-1B Amendment may be required. If the employee's location changes in the same MSA (Metropolitan Statistical Area), then just filing an amended LCA may suffice. But if the new work location is outside of the original MSA then you may need to file an H-1B Amendment. For example, an employee who relocates from a Texas worksite to a California worksite would probably require an H-1B Amendment. Even an employee who relocates from a Los Angeles, CA worksite to San Francisco, CA worksite may require an H-1B Amendment. Please consult your immigration counsel to determine what steps you need to take.
Scenario 2: Employee's job title changed
A simple job title change may not warrant getting an H-1B Amendment but if the job duties have had more than "50% material change" then you may need to file an H-1B Amendment. For example, if an employee has been promoted to a managerial role where he or she now manages employees, and the previous role did not include this responsibility, then an H-1B Amendment may be required. The best way to establish if the role has changed more than 50% is to consult with your immigration counsel.
Scenario 3: Employee's job changed
As a best practice, you should check with your immigration counsel before changing the job of a foreign national employee. If the job has changed, it must satisfy the Prevailing Wage requirement and the job must still be a speciality occupation.
Scenario 4: Employee's salary changed
In most cases an increase in employee's salary does not require you to file an H-1B Amendment. But if you plan to cut a foreign national employee's salary, you should first consult your immigration counsel. Decreasing salary does have implications on the H-1B (due to the Prevailing Wage) and an Amendment may need to be filed.
Scenario 5: Employee wants to add a dependent
No Amendment is needed in this case. The employee's dependent needs to file for an H-4 visa, which is a separate process altogether.
What are the fees for filing an H-1B Amendment?
If your immigration counsel determines that the H-1B needs to be amended, then the following steps and associated fees may need to be paid -
File LCA - A new LCA will need to be filed with the adjusted prevailing wage. Read more about the LCA process here.
LCA fee - $0
Attorney's legal fee to file the LCA
File H-1B petition - If a new petition needs to be filed with the adjustment, then the following fees will need to be paid.
I-129 filing fee - $460
Attorney's legal fee to file the Amendment
If filing with Premium Processing - If the petition needs to be filed with Premium Processing, then add another $2,500.
Note - the government fees may change at any time.
How soon should the H-1B amendment be filed?
As a general rule, the H-1B Amendment should be filed before any of the changes that require an Amendment take place. However, USCIS is generally very flexible with Amendments and thus, it is okay for an Amendment to be filed after the change has taken place. The agency understands that roles and responsibilities can change constantly for organizations. However, if you anticipate a change in a foreign national’s role, please be proactive and reach out to immigration counsel to seek advice.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a WayLit-affiliated attorney or another qualified professional.