H-1B Petitions: When Should You as the Employer Amend or Terminate Them?

H-1B petitions filed on behalf of employees are generally filed for a specific job that has specific job duties. When there is a material change in the terms of an H-1B beneficiary’s employment, the petitioning employer is legally required to file a new H-1B petition or amend the original petition.

What is a material change?

A material change is a change to the H-1B beneficiary’s job that substantially changes the terms and conditions of the H-1B employee’s job. The following are examples of material changes to a job for H-1B purposes:

1. A change in the employment location;
2. A change in the job duties (i.e., when the employee’s job duties change from one specialty occupation to another);
3. A change in the hours of employment (i.e., the employee was originally hired on a full time basis but now is working on a part-time basis); and 4. A change of employer (i.e., a merger or acquisition where the new employer holds a different Federal Identification Number).

When should an H-1B Amendment be filed?

Although there is no specific time to file for a new or amended petition, it is recommended that the amendment be completed before the material change in the job occurs.

What should employers do when they terminate H-1B employees?

Employers have many obligations when they terminate H1-B employees. An employer must always notify the USCIS of a material change. Therefore, the employer must inform the USCIS in writing that the H-1B employee does not work for it with a letter explaining the change. This way the USCIS has a chance to revoke the petition. A notification to the USCIS is crucial in ending the H-1B employers’ obligations such as paying the employee their wages. A bona fide termination occurs when the H-1B employer tells the USCIS of the termination, the H-1B petition has been cancelled, and that the employer provides the employee payment for return back to his or her home country. The USCIS states that they should be immediately notified of an H-1B employee’s termination so that they can make the necessary adjustments and changes to the employees H-1B status. In order for it to be considered a bona fide termination there must be notification of this termination in the manner stated above. The bona fide termination actually occurs on the date the employer informs the USCIS not the date the USCIS revokes the employees H-1B status.