H1B amendment?

[smog]

Hello all, here goes:

– I am currently working with my employer (direct hire) at a location X. My H1B application has been approved (the USCIS case status says the I-129 has been mailed). I am yet to receive the I-129.

– I recently appeared for an internal interview for a position (in the same team, although a more technical position with a Job Title and job duties change). I am selected for this new position. There is no change in employer, location or salary.

Questions are:

1) Will this need my employer to file a new LCA and H1-B amendment application for me?

2) What is the cost for this LCA + H1-B amendment application?

3) Can I start working in the new role before they submit this amended application?

4) What is the timeline by which I should expect the result for this amendment application?

5) Will this amendment application be cap-exempt?

6) Are there any chances of denial?

Any help is highly appreciated.

[jairichi]

1. Your employer's attorney will be the best person to answer this question.

2. Your employer will pay and so stop worrying about it.

3. No.

4. 3 to 4 months or longer.

5. Yes.

6. Based on documents submitted.

[livliv]

Amendment may be needed if there is significant change in job duties.

[Attorney_21]

smog:

 

In general an amended H1B petition is required if there is a "material" change in job duties. There's no bright-line test for this, but a change only in job title, a slight (progressive) increase in salary, or the addition of a few additional duties probably does not require an amendment - just report these changes when an extension is filed. A more substantial change in duties would require an amendment. It sounds like you might be in that category...

 

You can normally start working in the new position as soon as the amendment is filed. An amendment only (without an extension request) would require only the "base" filing fee of $325. The timeline would be the same as any H1B petition, as would the chance of a denial (each H1B petition, even an amendment or extension must "stand on its own").

 

This petition would be cap-exempt, as you have already been "counted against" the H1B cap.

[smog]

Attorney_21, Thank you. One more question, can I start working on the new profile before an application for amendment has been made by my employer? They are in the process of doing that, but my offer letter has a Start date of 07/01/2015. Is this date going to be a problem?

[smog]

P.S: I am currently on my OPT extension (valid till October 2016) and my H1B was filed with Consular Processing Option. I plan to get stamped in December 2015.

[jairichi]

Attorney_21, Thank you. One more question, can I start working on the new profile before an application for amendment has been made by my employer? They are in the process of doing that, but my offer letter has a Start date of 07/01/2015. Is this date going to be a problem?

Only after filing an amendment petition.

[smog]

Even if I am on my OPT?

[jairichi]

Even if I am on my OPT?

Not while you are on OPT but when you move to H1B.

[smog]

So, to sum up your advice - "Since I am on OPT right now (although I got selected in the H1-B lottery, my status is still OPT), I can already start working on the new profile. While in the mean time my employer is filing for a H1-B amendment application. Once the amendment petition is approved,  I take the amendment approval I-129 (also the current I-129 which I recently received for my original H1-B petition) for my stamping (since mine is Consular Processing) in December 2015."

 

From your answers, I also understand this - "You cannot begin working on a new job [with Material changes] before you file a H1-B amendment, if you are already on H1-B status."

[jairichi]

So, to sum up your advice - "Since I am on OPT right now (although I got selected in the H1-B lottery, my status is still OPT), I can already start working on the new profile. While in the mean time my employer is filing for a H1-B amendment application. Once the amendment petition is approved,  I take the amendment approval I-129 (also the current I-129 which I recently received for my original H1-B petition) for my stamping (since mine is Consular Processing) in December 2015."

 

From your answers, I also understand this - "You cannot begin working on a new job [with Material changes] before you file a H1-B amendment, if you are already on H1-B status."

Yes, on OPT you can move to a job with new profile as long as it is related to your study. About filing an H1B amendment before Oct 1st I would suggest you talk to a good immigration attorney.

[smog]

Thank you so much @jairichi! That was great help.