Foreign national workers with an H1-B visa may need to make amendments to their initial visa status. In this guide, we offer more details about the H-1B visa amendment process, including what an amendment is, when one might be needed and how to apply for an amendment.
What is an H1-B visa?
An H1-B visa is an employment-based, nonimmigrant visa for temporary workers. It allows American employers to sponsor foreign national workers to enter the U.S. in order to fulfill a required job position on a temporary basis.
In other words, an employer must offer a U.S.-based job to a foreign national employee and petition for an H-1B visa on behalf of the nonimmigrant employee.
The process of applying for an H-1B visa is as follows:
The American employer files a Labor Condition Application (LCA) with the United States Department of Labor on behalf of the foreign national employee.
2. Once the U.S. Department of Labor approves the LCA, the American employer must then complete and file Form I-129 (Petition for Nonimmigrant Worker) with U.S. Citizenship and Immigration Services (USCIS). This form requests an H-1B classification for the foreign worker. All necessary supporting documentation must accompany Form I-129 when it is submitted to USCIS.
3. If USCIS approves the petition, it will serve as a work permit and will allow the foreign worker to obtain an H-1B visa classification. The worker also gains entry to the U.S.
The foreign employee may begin working on or after the indicated start date if they are physically present in the U.S. within the valid timeframe.
If the foreign worker is abroad when USCIS approves Form I-129, they may use the approved form to apply for an H-1B visa at a U.S. port entry. There, they may obtain a Form I-94 (Arrival/Departure Record) to gain entry into the country.
Duration of stay
The duration of stay for an H1-B visa is three years. It can also be extended to six years in certain situations, for example:
If an I-140 (Petition for Immigrant Worker) filed on behalf of the foreign worker is approved, but the foreign worker is not able to begin the last step of permanent residence status application because the priority data isn’t current. In this case, the nonimmigrant H-1B worker may be eligible for a three-year extension on the visa so the adjustment of status can be completed.
If an I-140 (Petition for Immigrant Worker) or a labor certification has been filed on behalf of the foreign worker before the fifth year that they have had an H-1B visa. In this case, the nonimmigrant worker can renew the H-1B visa once a year until a decision on the application for permanent residence has been made.
Note that the maximum duration of stay for H-1B visa holders who are working on an exceptional U.S. Department of Defense project is 10 years.
Non-permanent resident H-1B visa holders who have already extended their duration of status to the maximum six years must leave the country at least one year before they can reapply for a new H-1B visa.
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What privileges are granted with an H-1B visa?
Foreign workers who have an approved H1-B visa are allowed to work and reside in the U.S. as a non-immigrant. Additionally, HI-B visa holders are allowed to:
Buy real estate
Become members of employment organizations
Become unemployed or inactive if in the process of applying for a green card
Travel domestically and internationally without receiving approval from the U.S. government via an advance parole or an Employment Authorization Document (EAD).
What is an H1-B Visa amendment?
Once an H-1B visa is approved, a material change in the conditions of employment cannot be made. For example, the foreign worker’s place of employment cannot be changed.
However, if a material change needs to be made, an application for an amendment to the existing H-1B visa can be filed.
When to file an amendment
Examples of material changes that would require an H-amendment to an existing H-1B visa include:
When an H-1B visa holder’s job changes their place of employment to a worksite location that requires the employer to certify a new Labor Condition Application (LCA) petition for Nonimmigrant Workers. Because this change could potentially impact the foreign worker’s eligibility for an H-1B status, it is considered a material change.
When there is a material change in the terms and conditions of employment for the foreign worker. In this case, the petitioner (a.k.a. employer) must file an amended or new H-1B visa petition with the LCA.
When the H-1B visa holder’s job title changes
When there has been a significant change in the H-1B workers status
If an H-1B visa amendment is necessary and is not applied for, USCIS may take action against both the foreign worker and their employer.
Should this happen, the foreign employee may be stripped of their H-1 visa status and be deported.
As such, an application for an amendment should be filed if any material changes to employment occur and affect the H-1B visa petition initially filed.
When filing an amendment is unnecessary
Employers do not need to file an amended H-1B visa petition if:
The H-1B visa holder is moving to a new job location that is within the same metropolitan statistical area (MSA) or area of intended employment
The H-1B visa holder’s movement to a new work location is only temporary. If the foreign employee will only be working at a different location for 30 days or less (in some instances, 60 days or less), an H-1B visa petition does not need to be filed.
The H-1B visa holder is only going to a non-worksite location. Locations that are considered “non-worksites” include:
Locations where foreign workers are partaking in employee development activities, such as a management conference or a staff seminar
Locations where a foreign employee spends a small amount of time
Jobs that are considered “peripatetic in nature;” for example, when the primary job the employee has been approved to fulfill is situated at one location but they must travel to a new location occasionally to other locations for short periods of time.
Filing amended H-1B visa petitions
To file an amendment, the employer must file Form I-129 (Petition for Immigrant Worker) with USCIS. Additionally, the employer must submit a Letter of Support, as well as any other necessary supporting documents, such as:
The employee’s existing H-1B visa
The employee’s three most recent pay stubs
A copy of the H1-B visa holders passport
A copy of the foreign employee’s I-94 (Arrival/Departure Record)
A copy of the employee’s updated resume
Copies that prove any academic degrees the employee holds
A copy of the foreign national worker’s Social Security card (if applicable)
The employer must also pay a $1,500 filing fee for Form I-129.
The nonimmigrant employee may start working for the employer as soon as the amended H-1B visa has been filed.
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