H1B Amendments

[Attorney_22]

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_22]

The USCIS interim guidance regarding H1B Amendments: http://www.uscis.gov/news/alerts/uscis-draft-guidance-when-file-amended-h-1b-petition-after-simeio-solutions-decision

[mindreader]

Thanks Murthy Forum for facilitating the discussion. My H1b(Was an extension) got approved last October, I moved to a new client in Same City in February. The position, roles and responsibilities are same, didn't change. Both my Old Client and New client locations are in Same city within 15 Miles. I'm planning to go for my Stamping @ Hyd, India next month.My employer didn't file H1B amendment after moving to new client.

As both old and new clients are is Same MSA, Can i go to stamping without H1B Amendement? If not, Is it advisable to go to stamping without Amendment? What options do i have?

Thanks in Advance.

[Attorney_22]

Although USCIS guidance is not clear on your particular circumstance, we see this being an issue in H1B denials. Specifically, the denials make it clear USCIS considers end-client changes as material, even when both work locations are within the same MSA. Accordingly, an H1B amendment should be filed. If you have additional questions, feel free to schedule a consult with an attorney in our H1B Department. 

[sgeovar]

Hi,

 

   Please clarify the below two scenorios

 

  1 )  If a person works under clien1 and  got H1B approval and got stamped  for 3 years and then changed to client2, In this case, H1B amended petition has to be submitted.

After amended petition got approved 9, does this person go again for stamping ?

 

  2 ) H1B stamping is done for 3 years along with family members (H4). Then H1B holder changes the client and submits the amended petition. During pendency of H1B amended petiton,  if H4  holders only travel  ( not H1B ) outsided US, is it possible to return ?

[sgeovar]

Hi,

 

   Please clarify the below two scenorios

 

  1 )  If a person works under clien1 and  got H1B approval and got stamped  for 3 years and then changed to client2, In this case, H1B amended petition has to be submitted.

After amended petition got approved (client2), does this person go again for stamping ?

 

  2 ) H1B stamping is done for 3 years along with family members (H4). Then H1B holder changes the client and submits the amended petition. During pendency of H1B amended petiton,  if H4  holders only travel  ( not H1B ) outsided US, is it for them possible to return to US with old stamping ( client 1)?

[Attorney_22]

While an I-797 H1B Approval Notice is tied to a particular employer, an H1B visa stamp is tied to the status. Thus, generally as long as an individual possesses a valid H1B visa in their passport it is not necessary to obtain a new H1B visa when traveling abroad simply because there has been change in H1B employment.

 

This is true for H4 Beneficiaries as well. Provided the Principal H1B holder is in valid H1B status, the dependent H4s can utilize an already approved and valid H4 visa even when the Principal’s H1B employment has changed. 

[sgeovar]

While an I-797 H1B Approval Notice is tied to a particular employer, an H1B visa stamp is tied to the status. Thus, generally as long as an individual possesses a valid H1B visa in their passport it is not necessary to obtain a new H1B visa when traveling abroad simply because there has been change in H1B employment.

 

This is true for H4 Beneficiaries as well. Provided the Principal H1B holder is in valid H1B status, the dependent H4s can utilize an already approved and valid H4 visa even when the Principal’s H1B employment has changed. 

Thanks a lot for your reply.

[Suman888]

Hello,

 

My question is related to filing for an H1 Amendment with Extension.So, here is the situation:

I did Masters from Stratford University and while i was on OPT, the Attorney from my company applied for H1 in 2013 under Masters Quota. Later, i was informed by the senior students of the University that it should have been applied in General Quota since my University was Profit University. Since, my H1 got approved for 2.5 years at that time, i spoke with some new attorneys and they said, the law has been there for long time, but USCIS was not taking strict action. They said since your H1 is approved now, there is nothing much you can do at this point, sine it was lottery for that year and general quota was filled by the time i came to know of this mess that the old attorney had done.

Now, my Client has changed and i have been working there but the employer had not filed for H1 amendment at that time, Now, as per the revised update by USCIS, I need to apply for H1 amendment before August 19th.

I am very much aware of the fact that due to the Masters quota issue, my H1 might get revoked if i file for amendment.

I am trying to find how to fight this case, since USCIS needs to understand that the applicant is not an attorney who would know in which quota to be applied, and it was a fault from USCIS side as well that they approved it at that time, if they had rejected, i still had 19 months of OPT left to be used. My only mistake is that i trusted the attorney when he told me that we will apply in Masters quota since you have done Masters degree from USA. Due to my financial responsibilities back in India, i cannot afford to go back. Can you please tell me what to do, is there a high chance that when i will file H1 Amendment, they will find out about the Masters issue. Also, since my Extension is due in March, 2016, should i go for H1 amendment with Extension right now rather than giving them another chance next year to reject it. Please help.

I seriously think as much as it is an applicant's fault, it is USCIS and Attorney's fault too and we should not be penalized for this. I have maintained my legal status always since i came here in 2010, and have always paid all taxes in time.

[gka]

Hello,

 

I am located at city X and my current H1 was approved in 2013 for client A which is local from my location. I was moved to next city Y which is 6 miles from city X due to the better school zone. After this project was completed, in 2014 I went to another client B at different location which I was travelling. We changed the LCA but did not file H1 amendment. Now I got a remote project for client C. I will NOT be travelling to the new client location and working completely remote from home. Here is my question:

Do we need to file H1 amendment now for Client C? All my last location city X, current location city Y, the client A location (which my H1 was approved) are under one MSA (Metropolitan Statistical Area). 

 

Thanks

[Attorney_22]

Hello,

 

My question is related to filing for an H1 Amendment with Extension.So, here is the situation:

I did Masters from Stratford University and while i was on OPT, the Attorney from my company applied for H1 in 2013 under Masters Quota. Later, i was informed by the senior students of the University that it should have been applied in General Quota since my University was Profit University. Since, my H1 got approved for 2.5 years at that time, i spoke with some new attorneys and they said, the law has been there for long time, but USCIS was not taking strict action. They said since your H1 is approved now, there is nothing much you can do at this point, sine it was lottery for that year and general quota was filled by the time i came to know of this mess that the old attorney had done.

Now, my Client has changed and i have been working there but the employer had not filed for H1 amendment at that time, Now, as per the revised update by USCIS, I need to apply for H1 amendment before August 19th.

I am very much aware of the fact that due to the Masters quota issue, my H1 might get revoked if i file for amendment.

I am trying to find how to fight this case, since USCIS needs to understand that the applicant is not an attorney who would know in which quota to be applied, and it was a fault from USCIS side as well that they approved it at that time, if they had rejected, i still had 19 months of OPT left to be used. My only mistake is that i trusted the attorney when he told me that we will apply in Masters quota since you have done Masters degree from USA. Due to my financial responsibilities back in India, i cannot afford to go back. Can you please tell me what to do, is there a high chance that when i will file H1 Amendment, they will find out about the Masters issue. Also, since my Extension is due in March, 2016, should i go for H1 amendment with Extension right now rather than giving them another chance next year to reject it. Please help.

I seriously think as much as it is an applicant's fault, it is USCIS and Attorney's fault too and we should not be penalized for this. I have maintained my legal status always since i came here in 2010, and have always paid all taxes in time.

Hi Suman888, your concerns are warranted, but perhaps premature. It is possible USCIS will eventually notice the complication and issue a notice to revoke your already approved H1B petition, or notice to deny a new petition. However, until USCIS takes action there is little that can be done. If USCIS does take action, schedule a consult with one of the Murthy Law Firm H1B attorneys to prepare your response. We have seen this issue before and have a strategy that can be successful. 

[Attorney_22]

Hello,

 

I am located at city X and my current H1 was approved in 2013 for client A which is local from my location. I was moved to next city Y which is 6 miles from city X due to the better school zone. After this project was completed, in 2014 I went to another client B at different location which I was travelling. We changed the LCA but did not file H1 amendment. Now I got a remote project for client C. I will NOT be travelling to the new client location and working completely remote from home. Here is my question:

Do we need to file H1 amendment now for Client C? All my last location city X, current location city Y, the client A location (which my H1 was approved) are under one MSA (Metropolitan Statistical Area). 

 

Thanks

In regards to your situation, it appears USCIS may consider a change in end client as a “material change” and therefore an amendment would be the safest course of action. 

[Suman888]

Hi Suman888, your concerns are warranted, but perhaps premature. It is possible USCIS will eventually notice the complication and issue a notice to revoke your already approved H1B petition, or notice to deny a new petition. However, until USCIS takes action there is little that can be done. If USCIS does take action, schedule a consult with one of the Murthy Law Firm H1B attorneys to prepare your response. We have seen this issue before and have a strategy that can be successful. 

Hello, I am wondering that if they send Notice to revoke, i would immediately be out of status and might not have enough time to contact your law firm, so i contacted your office today and asked a consultation from you. But they said, they are not aware of which attorney is replying to this post. Can you please contact the receptionist Karen and inform her about your name so that i can consult with you. Thank you and waiting for your reply.

[Attorney_22]

Hello, I am wondering that if they send Notice to revoke, i would immediately be out of status and might not have enough time to contact your law firm, so i contacted your office today and asked a consultation from you. But they said, they are not aware of which attorney is replying to this post. Can you please contact the receptionist Karen and inform her about your name so that i can consult with you. Thank you and waiting for your reply.

I will speak with Karen in the morning. However to answer your question a Notice of Intent to Revoke generally gives the Recipient thirty days to respond.  

[Suman888]

I will speak with Karen in the morning. However to answer your question a Notice of Intent to Revoke generally gives the Recipient thirty days to respond.  

Hey, I just spoke with Karen. She did not get any notification. Can you please update.

[nanna]

Hello

​-

I have valid H1-B extension till Mar 2018 which is based on approved I-140 and my project location was changed

​ recently​

. 

My employer applied ​

LCA for work location change and H1-B Amendment and got approvals last week. 

​​

However H1-B amendment 

​(​

​I-129) ​

expiry date is before H4 

​(I539) expiry​.  Since H4 is tied to H1-B and in my case, since H4 have longer validity than H1, will it cause any problem in visa stamping in India or re-entry at POE ?

 

Any advice is greatly appreciated.

 

 

​thanks

[sreenuthentu]

Hi,

 

I have valid H1-B till 16th Jan 2016 and i changed my project and i have only LCA do i need to go for amendment or shall i go for extension within 6 months of my H1-B expiry ie; after 16th Jul 2015 and before 19th Aug 2015(dead line for H1b amendment) with current project.

 

Thanks

[Attorney_20]

 

Hello

​-

I have valid H1-B extension till Mar 2018 which is based on approved I-140 and my project location was changed

​ recently​

. 

My employer applied ​

LCA for work location change and H1-B Amendment and got approvals last week. 

​​

However H1-B amendment 

​(​

​I-129) ​

expiry date is before H4 

​(I539) expiry​.  Since H4 is tied to H1-B and in my case, since H4 have longer validity than H1, will it cause any problem in visa stamping in India or re-entry at POE ?

 

Any advice is greatly appreciated.

 

 

​thanks

 

You have a spouse in H-4 status?  If so, your spouse needs to apply for an extension of H-4 status also by filing a Form I-539 with the filing fee before the current H-4 status expires.

[Attorney_20]

Hi,

 

I have valid H1-B till 16th Jan 2016 and i changed my project and i have only LCA do i need to go for amendment or shall i go for extension within 6 months of my H1-B expiry ie; after 16th Jul 2015 and before 19th Aug 2015(dead line for H1b amendment) with current project.

 

Thanks

If the project itself has changed, USCIS would likely view this as a "material change" requiring an H1B amendment to be filed now.

[nanna]

You have a spouse in H-4 status?  If so, your spouse needs to apply for an extension of H-4 status also by filing a Form I-539 with the filing fee before the current H-4 status expires.

Dear Sir,

I'm little confused and sorry if my earlier question is not clear.

 

Spouse is on H-4 and I-797 valid till 2018 which was approved before work-location changed. After principal H1-B work-location changed, LCA & H1-B amendment was applied and got approval till 2018. However, H1-B expiry exact date in amendment (I-797) is before H4's expiry date. will it cause any problem ?

 

If principal H1-B work-location is changed and if H-4 have valid 797 till 2018 which was approved earlier, do we still need to file form I-539 ?

 

thanks

[JoshA]

Hi,

I have a valid H1-B Visa till Feb 2016(already got stamped) and recently I moved to another client(nearby city) and got a new LCA. Now I am thinking to go to India for vacation around this September. 

1. As I don't need to go for stamping, will it be any problem while returning without filing amendment?
   
2. What is the probablity to check the amendment at POE? Are they serious about my client change?
   
3. My employer is planning to apply amendment on next month July. Then If I will go(on sepetember) out of the country while my amendment is in progress, what will happen? Will they revert back my amendment? Any problem to entry?
   

 

Thanks

[Attorney_22]

Although generally there is greater scrutiny at the consulate during a visa interview, when entering through CBP with an already issued visa, there is still significant risk the CBP officer will inquire about your work location and client, and compare that information to your last filed H1B petition. If the new location is outside the MSA of the original H1B petition the CBP officer may deny your entry. Moreover, without an Amendment after the August deadline, arguably you are in violation of your status. Accordingly, it is advisable to file an amendment. 

[jayan1vg]

Hi, 

 

what are items to be consider to whether file an amendment or not.

 

Example:

1. Change in client in same MSA?

2. Change in MSA for same client?

3. same client, same MSA, and Change in Pay?

4. etc....

[JoshA]

Although generally there is greater scrutiny at the consulate during a visa interview, when entering through CBP with an already issued visa, there is still significant risk the CBP officer will inquire about your work location and client, and compare that information to your last filed H1B petition. If the new location is outside the MSA of the original H1B petition the CBP officer may deny your entry. Moreover, without an Amendment after the August deadline, arguably you are in violation of your status. Accordingly, it is advisable to file an amendment. 

In your response, you said that "new location is outside of the MSA...." that means If some moved from client to another client within MSA then it is not required?

Here it is my case - I changed my end client(client A to B) for same role but within same MSA. In this scenario, amendment is required or not.?

[Bang123]

Hello Sir,

 

I have a valid H1B visa till July 2017, Due to location change My employer had filed the LCA and was approved in 2014. I travelled to US in FEB 2015 and on Request from my company(June 2015) I have shared the documents for amendment.

 

• Wanted to know whether I have to go for stamping again?
• In meantime can i travel to India and return back to US. Since per my Employer I can travel but can return back after receiving certified LCA, copy of I-129 and the receipt note.

Thanks,

Aqueel.