H1B Amendments

[venkat_d]

Hello,

thank you for facilitating this. I am currently on H1B valid until Jan 2018and approved I-140. My current employer went through a merger and there is a new company name and a new TaxID. My role remains the same.

 

My immigration department and lawyers are telling me that everything is being taken care of and I do not need to do anything. There is also no document being provided to me as a reference for the smooth immigration transition and I am not sure if anything is needed.

 

My questions are:

 

1. Do they need to file any amendments for h1b and I-140? Will this merger have any impact on my current status and also anytime in the future in the path towards green-card? Should I expect any RFE's or any issues in the future at I485 stage?

 

2. Will the Green Card process have to restart from 1st step and a new h1b filed due to the merger? 

 

3. Is there any impact to travel and if I go for a visa stamp appointment and do I need to be carrying anything specific?

 

Thank you

 

 

 

This week, the Murthy Law Firm attorneys will answer questions relating to H1B Amendments.  

 

 

 

You may also review the following article regarding recent USCIS guidance on this matter:  http://www.murthy.com/2015/06/03/uscis-sets-aug-19th-deadline-to-file-h1b-amendments-for-employee-relocation/

 

 

 

Rules for Topic of the Week Threads:

 

 

 

 1. Attorney's postings contain general information only and are not a substitute for case-specific legal advice.

 

 

 

 2. The attorney will answer only those questions which relate to the main subject. If you have a question on some other issue, please start a new thread in the appropriate forum section.

 

 

 

 3. The attorney will not necessarily answer every question posted and may provide a single answer to a group of similar questions.

 

 

 

 4. Please do not provide information which would identify any specific company, university or individual (including yourself).

 

[Attorney_21]

Venky_D

 

My advice here is general, as this is a complex issue, and you should consult with an attorney for individualized information:

 

1) An H1B amendment is not required if the new company is the "successor in interest" to the original employer, meaning that the new company has assumed the assets and obligations of the original employer - a notarized  "successor in interest" memorandum will need to be placed in the H1B Public Access File (and should be provided to you). When an EXTENSION is filed, it will be in the new company's name/FEIN. For the I-140 petition - an amendment WILL need to be filed, and the new company will need to prove that it is the successor in interest, that it has the ability to pay your offered wage, and that the job offered has not changed..

 

2) No - as long as it is a "successor in interest" situation.

 

3) If you are travelling on the current petition - you will need the Successor in Interest memorandum discussed above. I sometimes advise people to go ahead and file the amended H1B in this situation (even though it's not legally required) to avoid confusion / delay at the Consulate - this is a decision that you and the employer will need to make.

[venkat_d]

Dear Attorney_21.

 

Thank you for the information. Question I have is:

 

1. You mention that an amendment WILL need to be filed for the I-140.

 

a. When should this be done and is there a specific timeline after the merger effective date?

b. Can I travel on H1B with a successor in interest memorandum while this I-140 is being amended or should I wait for approval? Does the USCIS provide a new I-140 after amendment?

 

Thanks

 

Venky_D

 

My advice here is general, as this is a complex issue, and you should consult with an attorney for individualized information:

 

1) An H1B amendment is not required if the new company is the "successor in interest" to the original employer, meaning that the new company has assumed the assets and obligations of the original employer - a notarized  "successor in interest" memorandum will need to be placed in the H1B Public Access File (and should be provided to you). When an EXTENSION is filed, it will be in the new company's name/FEIN. For the I-140 petition - an amendment WILL need to be filed, and the new company will need to prove that it is the successor in interest, that it has the ability to pay your offered wage, and that the job offered has not changed..

 

2) No - as long as it is a "successor in interest" situation.

 

3) If you are travelling on the current petition - you will need the Successor in Interest memorandum discussed above. I sometimes advise people to go ahead and file the amended H1B in this situation (even though it's not legally required) to avoid confusion / delay at the Consulate - this is a decision that you and the employer will need to make.

[SK304]

Hello,

 

Need your valuable inputs on my case.

 

I extended my H1B last October 2014 and it is valid till Dec 2016 with Client A. When I extend my H1B my family was here and their H4 also extended. My family moved to India on Feb 2015. I moved to client B in same state with different city (140 miles away). I started my H1B amendment process.

 

Please let me know shall I send my family to process their H4 visa in the mean time. Or Do I need to wait till my H1b amendment is complete?

 

Please advise.

[taneja.love]

My H1B amendment is in progress as per new rule of USCIS.

 

My passport is valid till Feb 2016. I want to get my passport renewed this month.

 

Can you please let me know if renewing my passport will have any impact my H1B amendment as passport number will be changed after renewal?

[Attorney_20]

Hello,

 

Need your valuable inputs on my case.

 

I extended my H1B last October 2014 and it is valid till Dec 2016 with Client A. When I extend my H1B my family was here and their H4 also extended. My family moved to India on Feb 2015. I moved to client B in same state with different city (140 miles away). I started my H1B amendment process.

 

Please let me know shall I send my family to process their H4 visa in the mean time. Or Do I need to wait till my H1b amendment is complete?

 

Please advise.

You should speak to an immigration attorney.  It sounds like you moved to a new work location prior to the filing of an H1B amendment.  Was a certified LCA posted at the new work location before you moved to client B?  If not, USCIS may deny your extension of stay request for failure to maintain nonimmigrant status.  However, the H1B petition could still be approved for consular processing. Your family may want to wait until your new H1B petition is approved before they apply for H4 visas.  In any event, you should speak to an attorney.

[rocky786]

Hi Sir,

 

I have my visa valid till next year and now suddenly my employer wants me to file an H1B Amendment, since last year i got promoted. Though i have valid documents like LCA, Transfer memorandum.

 

Now according to the new law,my employer is filling the H1B Amendment.

 

My question is:-

 

1. Will i be able to stay, if for any case my H1B Amendment is not filled on time ? 

2. Will i be able to stay, if my H1B Amendment is denied by any case.

 

I am worrried for both the scenario's, since my wife(H4-Dependent) is expecting and she is in her 7th month.

 

If the H1B Amendment is not filled on time, will she be able to stay here and can i stay here to support her ?

 

If after the H1B amendment is filled and if for any reason it is denied, i am worried for my kid as within one month i am not sure whether i will be able to get all the documents for my kid ready for the travel back.

 

Please help me with your advise, so that i can take action accordingly.

 

Thanks in advance.

[hpm]

Hello,

 

My situation is little different. I worked for client A in 2014 in Location A (let’s say SF city) for which I had the H-1B extension and LCA approved. In 2015, I switched to client B. Client B is located in Los Angeles. However, I work remote from home all the time which is in the same MSA as Location A (SF City).

 

So basically, my employer is the same, however clients have changed and the work site location is also changed but the 2 worksite locations fall under the same MSA as requested in the original LCA.

 

Do I need to file for the H-1B amendment ? Does the change in the clients affect the employer – employee relationship and is this a material change in terms of employment and trigger the filing of H-1B amendment ?

[Attorney_20]

 

Hello,

 

My situation is little different. I worked for client A in 2014 in Location A (let’s say SF city) for which I had the H-1B extension and LCA approved. In 2015, I switched to client B. Client B is located in Los Angeles. However, I work remote from home all the time which is in the same MSA as Location A (SF City).

 

So basically, my employer is the same, however clients have changed and the work site location is also changed but the 2 worksite locations fall under the same MSA as requested in the original LCA.

 

Do I need to file for the H-1B amendment ? Does the change in the clients affect the employer – employee relationship and is this a material change in terms of employment and trigger the filing of H-1B amendment ?

 

Regardless of the location, this may be considered a "material change" requiring an amendment since the project changed.

[Befirm]

Hi, 

 

I am on H4 visa and got my H1b approved this year. I am planning to travel during August and return by September.

As my application was filled with COS which got approved. Now that if i travel will my case require amendment of my recent travel and i94? Or my original COS & I-94 will get in effect on 1st OCt irrespective i travel or not.

 

Thanks,

[shruti7]

Hi Sir,

 

I am currently on H1B which was applied in April 2014 and I started working from Oct 2014.

My H1B was filed from State A and I am currently working in State B for a client. My employer is now filing my LCA amendment for change in work location (This is my first job on H1B).

 

Question 1. Is it too late for filing the LCA Amendment?

 

Question 2: I will be travelling to India in december for my stamping. Will this change have an impact on my stamping?

 

Question 3: I am also looking for a full time job (currently working on contract) so in that case my new employer will get the H1B transferred. Will the LCA Amendment process hamper the h1b transfer process? How long does it take generally for the successful amendment to reflect on new LCA?

 

Kindly guide.

 

Thanks!!

[marieselvam]

Hi,

 

My Employer is filing H1 amendment for Location and role change while i am working for the same client.

I am having valid LCA and my visa stamped till Sep 2016.

 

I intend to travel to India for vacation while my H1 Amendment will be in progress. 

 

Can you please advise if there is any issues for travelling outside US during H1 Amendment process in Progress?

 

Thanks,

Marie Selvam.M

[asing3]

Hi,

I have a H1B visa valid through Dec 25, 2015 and an amendment and extension is filed for me on july 13, 2015.

I am planning a trip to India in Aug and returning back on Sep-09-2015. In case the extension gets approved/denied during my stay in India, then can there be any issues in retruning back to USA with existing visa?


Basically I just want to understand that while amendment-extension is process, can I travel back from India with a valid existing visa?

Thanks

[anushka12]

Hi,

 

Currently I am on valid H1B status until 04/01/2016 and my current employer recently filed H1B amendment due to job location change and received an RFE. I got offer from another company willing to do h1B transfer. Can I proceed with the H1B transfer without waiting for the RFE to be answered ? Can I submit the original H1B approval notice to file the transfer with company B without waiting to clear the Amended petition RFE ?

 

Awaiting your valuable response ?

[L2EADGC]

Hi, I'm working for a client in particular state and city for the past 7 years on H1B and we may need to move out of that city/state to a different City/State because of my husband's job and my client agreed for me to do remote work . Do we still need to file H1B Amendment , even if its the same client, same job duties and also my payroll will still be generated at my old city/state as i'm still working their. Please advice ?

[Cowboys2015]

Hi Team,

 

I have 2 questions for you:-

 

1.My visa on I797A and passport is till May'16.My organization has just started amendment (visa extension process).Can I travel to India while the amendment is in progress?

 

2.I have a new passport now,my older passport (which was expiring on Oct'15) has the visa stamoed on it.Do I need to go through stamping process or carry some specific documents with me during my upcoming travel?

 

Please advise,many thanks in advance.

[krishnat]

Hello - I am on my 7th year of H1B from Employer A and have my I140 Approved with PD 11th Dec 2012. However, I am looking to change my employment anytime soon.

 

Now lets say, I decide to leave my current employment with Employer A, and return to India. I am pretty positive my I140 will be revoked once I leave my current place of employment.

 

How long do I need to wait, to apply for a New H1B with a new Employer? And will I be eligible for 3 years extension, even though I don't have 140 Status anymore.

 

 

 

[manoje2007]

 

I got H1B approved mail for this year and when checked the I-129 form, the role mentioned was wrong.

But the job responsibilities mentioned in the I-129 was correct as per my current role.

 

Also in LCA , they mentioned the job role wrongly (instead of Systems Analyst mentioned as Senior Tester).

 

If I file amendment, whether it would affect my approved H1B petition in anyway (revoking/denial)? 

 

Also i heard that if only role name changes and there is no change in the duties and responsibilities mentioned, then no need to ammend the petition. So I am confused in this. Please advice

[zroyalzroyal]

Hi,

 

My wife got approved H1B unitll Sept 2017. Her employer filed H1B with internal project in 2015 CAP subject quota. After that she moved to new client in Feb 2015 and employer filed new LCA with updated client in Mar 2015 but didn't file H1B amendment.

 

After USCIS guidance for H1B amendment we were suggested to file H1B amendment by August19th 2015 to avoid future out of status situation.

 

When employer reached out attorney - He got information from attorney that employees who moved to new client before April 15th 2015 does not need to file H1B amendment but other employees who moved to new client after April 15th 2015 need to go for H1B amendment. is it true?

 

After carefully reading the USICS amendment guidance, it does not make any sense for me.

 

Can you please advise whether employer need to file H1B amendment for my wife in this scenario. I really appreciate all your help in this case.

[skalangi]

Dear Murthy,

 

thanks for your forum to clarify our visa queries.

 

I have granted a H1B visa in october 2011 for a period of three years which was expired on april 05 2014. Before expiry, my company did extension of my visa within US and it was approved for another year which was valid till april 05 2015. I still have 2 years left in my six years quota and have atleast 2.5 years of non stay period.

 

Now I am in India and changed my employer. I am looking for a renewal of my expired visa through another employer. Can you please let me know if it is possible? If so, what should the new employer do? How long the process would take?

 

Thanks in advance. Appreciate your help.

[aks09212014]

while on H1 , there was a site visit in february,2015 ,only LCA was filed and no amendment happened, around april i converted to H4 by travelling out of country , will any NOIR on old H1 cause issues now or any future applications?
i converted to H1 from F1 in october 2014.thanks!

[areddy1234]

Dear Murthy,

 

Can you please confirm this, I found a document released by USCIS on July 21st 2015, which states this is true. We are in the similar situation as well and wanted to confirm if this is true.

 

Thanks,

Areddy.

[john12]

I am planning to go for H1B visa stamping in Mexico during September. Do we need to file H1B amendment if we eliminate middle vendor and I am currently working for same client and location (nothing changed in terms of work location or responsibilities). In my case we removed middle vendor and my company now directly working with the client.

In I129 petition file we mentioned that I am working through middle vendor to the end client when we filed for H1B last year but recently three weeks back we eliminated middle vendor and my company directly working with Client.

 

Please let me know if I need to file H1B amendment before going to Visa Stamping.

Any help in this regard highly appreciated.

Thanks,
Sai

[ArjunB]

Hi,

 

I'm in H1B. My stamping is valid till June 2016. Recently I changed my company and my Visa transfer was recently filed into premium. However I got an RFE. I need to leave for India on an urgent basis and my visa is still processing. My question is can I leave the country? If yes then what are the things I need to do? If my visa gets approved my company can send the i-797 documents into my India address, but I'm not sure about i-94. Please help me.

[satya9999]

Hi Attorny,

 

Please Suggest me whether i need to file my H1B Amendment or not.

 

My H1b Extension was approved on APR 2014 when i was working for client A in Los Angeles.

I moved to clinet B in San Francisco  in Novemeber 2014 and in APR 2015 i moved to client C in SFO. 

Please let me know if i need to file Amendement or not.

 

As per the  memoranda i think i fall under the "On or before April 9, 2015" category and as mentioned below i might not need to file my Amendment. Please clarify

 

The petitioner may choose to file an amended or new petition by January 15, 2016. 

Such requests to change an H-1B employee’s place of employment will be deemed timely. 

Even if the petitioner does not file the amended or new petition by this date, USCIS will generally not pursue 

new revocations or denials based upon failure to file an amended or new petition. 

 

 

However, notices of intent to revoke, revocations, requests for evidence, notices of intent to deny, or denials issued prior to July 21, 2015 (date of this final guidance) 

remain in effect and the petitioner must comply with them.If the petitioner has received a notice of intent to revoke a petition and the response period has not ended, 

filing an amended or new petition now and providing evidence of that filing prior to the response deadline may avert a revocation. 

 

 

 

This is only if there are no other grounds for the revocation except the failure to file an amended or new petition for a change to a place of employment not covered by an existing, approved H-1B petition. 

If the petitioner has received a request for evidence or a notice of intent to deny a petition based on a failure to file an amended petition, 

USCIS may consider the current, pending petition under review to satisfy the safe harbor filing requirement if it included, at the time of filing, 

a copy of the certified LCA covering the beneficiary’s current work location. 

 

In these cases, please ensure petitioners provide a copy of this guidance with their response, an explanation that their current 

petitions satisfy the safe harbor filing requirement for an amended or new petition, and any other evidence requested before the expiration of the response deadline. 

 

 

 

Thanks,

Sam