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Before getting into the details of H1B amendment due to location change, it is important to know what is H1B amendment.
As an H1B visa holder, there may be several situations in which you may have to ask your employer to file for an H1B visa amendment. The amendment process is mandatory whenever there is a significant change in your employment status. This could be a change of job title, job role, or a significant change in your salary.
A few changes where an amendment is needed include:
In this article, we will discuss various situations that merit an H1B amendment, focusing on location change.
Notices of changes in job location are only sent to the Department of Labor when the new application for LCA is made. The USCIS is not involved at this stage. If this happens and the Fraud Detection and National Security Group of the USCIS visits the old employment site, they will raise a challenge. The FDNS will move for a Notice of Intent to Revoke (NOIR), stating non-compliance with H1B terms. A similar situation could arise if consultant companies post their H1B employees at differing client locations. Once again, the USCIS will raise doubts about whether H1B employers and employees are abiding by H1B regulations. All these situations may be scrutinized under the Adjudicator's Field Manual, which states that there will be no need for an amended petition if the H1B employee maintains clauses like H1B employer, title, salary, and duties. There are several similar clauses one needs to be aware of when there is a change in job location.
When an H1B employer has plans to change the employee's work location, applying for an H1B amendment for location change is the best course of action. Filing the amendment before the employee is moved will further secure your position. Here are a few examples of situations that can be labeled "material change" and require H1B amendment:
An H1B holder can work from home if your H1B petition has your home address put down as the primary work location. If there is a switch happening and your home address which is the new location is outside the MSA of your previous job location, an H1B amendment will be in order.
In case of H1B Amendment for work from home, employers usually display the LCA at the company headquarters, irrespective of whether the employee's home address is the actual job location. If this is not the case, the LCA has to be posted on the employee's front door if it is the new work location. Applicants can use notice boards or bulletin boards for LCA display if the address is in a condo or apartment building. LCA posting must be done before the employee starts working from home.
Every care should be taken to ensure that details of the new employment address you give are correct. Corresponding changes should be made when there is a change in work location. If your residence is in a locality with a different prevailing wage than that of the previous job location, your salary will have to be revised accordingly.
If an H1B employee has to move to a worksite in a different MSA, it will be considered a material change and requires an H1B amendment. An MSA covers a very large area and may fall within a fifty-mile radius or extend beyond it. There are no USCIS rules covering H1B amendment for location change within 50 miles. Attorneys usually make general references to this figure, while the DOL and USCIS tend to consider the zip code MSA of the new job location.
USCIS must be informed within a ten-day period if an H1B worker decides to move to a new home. You can update the new address online if you already have an online account with the USCIS. Alternatively, you can file Form AR-11 online, which will update all pending requests, petitions, and applications you will include on the form.
Once USCIS is updated about your address change, there are no further procedures to take care of. An H1B home address change amendment is not required since there are no material changes to existing work conditions.
As a consultant H1B worker, your job may involve traveling to a client's location for work purposes and returning to your home. In this scenario, the client's location has to be listed as work location instead of your own address. For H1B amendment for remote work the LCA must also be posted at the client's location, using the "short-term placement" option. With this option, an H1B employer can place a worker at a different work location for thirty days or, in certain circumstances, for sixty days.
Fortunately, an H1B employee's immigration status will not be affected if H1B amendment for location change denied. The employee will be able to continue their work on the original work site as long as H1B visa is valid.
If you get a denial of the H1B amendment application, you have the right to appeal for a review. USCIS allows applicants to apply for a review within a 33-day period after the denial.
Denial of a petition for the H1B Amendment for change of worksite can cause difficulty for both employers and employees. In some instances, when not done, it could have serious consequences like deportation. H1B employers must make sure they understand the rules for H1B Amendments completely before filing the petition.
For information about H1B and to know more about US non-immigrant visa, visit Techfetch H1B.
**Disclaimer: Please note that USCIS immigration laws and regulations are constantly subject to change. Latest news and updates are always posted on the USCIS website.