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New H1b Amendment Rule

Discussion in 'Notices - please read' started by Ak_, Jul 22, 2015.

  1. Ak_

    Ak_ New Member

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    Hi Experts,

    Would anyone please share some lights on new H1B amendment rule. Here is my situation

    1) My current I797 (H1B) is valid till 29-Sep-2015.
    2) My current project is ending by end of this month (31st July).

    I asked my employer to file H1B extension under premium processing now with hope that before my project ends (31st July), I would get my visa extended.

    However employer is not ready and have following explanations.

    - It is better we file H1B extension with new project. As if we file H1B extension and after few days if the project is over then we would have to file H1B amendment for new project. And when we file H1B amendment then the actual visa (I797) duration can be changed again.

    So the question is
    1) Is it true that for any project change, we would have to file H1 amendment and at that time the visa duration can change?
    2) What would happen, if we file H1 extension and before getting approval, the project ends? Is there any solution like we can get new project and re-file case with new project?


    Any input would be highly appreciated.
     
  2. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Please keep in mind that this rule is not new - it's been on the books for 25 years. They have been lax about enforcing it, but now they are enforcing it stringently. Your employer is correct. You will be better off filing an H petition for the new job since an amendment will be required. Just make sure you file before your status expires.
     
  3. Ak_

    Ak_ New Member

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    Thanks for reply. So does this mean, every time when the project changes, as we have to file H1 amendment, the visa duration can change.

    In other words, for example, if I have I797 till July2016 and in case would have to change project before that for a short duration project let us say for 3 months then at the time for filling H1B amendment, the approval on I797 could be shorten from 1 year to 3 months?
     
  4. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Yes, that is correct.
     
  5. Ak_

    Ak_ New Member

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    Thanks a lot for your responses.
     
  6. binu2007

    binu2007 Senior Member

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    Ron

    Quick question

    For example if h1b worker is on Maryland and he moves to a different Client site which is only 3 miles away that is in same county will he require an H1b amendment ???

    With the above situation
    Mean while if his PD becomes current do he/she require H1b amendment???
     
  7. DonDraper

    DonDraper Guru

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    PD becoming current has nothing to do with H1b. As long you don't have EAD/GC, your employer should file H1b amendments
     
  8. binu2007

    binu2007 Senior Member

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    I Don't think in this particular case he/she need to file

    If the client is in the same MSA love cation MSAmeaning metropolitan Statistical Area Ron can u please give your clearer view on this
     
  9. Mayur

    Mayur Well-Known Member

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    As long as its the same Client, if you relocate within the same MSA there is no need to file an amendment. Ron confirmed this many times
     
    Last edited: Aug 11, 2015
  10. binu2007

    binu2007 Senior Member

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    It seems if we are in the same MSA we don't need to amend even if the client changes read below.



    A move within an "area of intended employment": If a petitioner’s H-1B employee is simply moving to a new job location within the same area of intended employment, a new LCA is not generally required. See INA section 212(n)(4); 20 CFR 655.734.


    Therefore, provided there are no changes in the terms and conditions of employment that may affect eligibility for H-1B classification, the petitioner does not need to file an amended or new H-1B petition.
    http://www.uscis.gov/sites/default/...s_Transition_Guidance_Memo_Format_7_21_15.pdf

    As long as there is no clear guidance of specific client change.. New Job location applies to a different client with the same position.

    Ron your inputs please.
     
  11. Ron Gotcher

    Ron Gotcher Attorney at Law

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    "Different client" is the key. That is a material change and requires an amendment - even if you move to a different office on the same floor.
     
  12. binu2007

    binu2007 Senior Member

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    Thanks Ron suppose move to a different client happened on June 30th as per the new memo we have time until jan 15 2016 to file the amendment IF by that time the EB PD become current and is able to file adjustment of status then should we do H1 amendment ???
     
  13. Ron Gotcher

    Ron Gotcher Attorney at Law

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    That is risky. You should file the amendment immediately.
     
  14. binu2007

    binu2007 Senior Member

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    Thanks Ron for the right guidance
     
  15. Ak_

    Ak_ New Member

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    Hi Ron,

    Do we need to file an amendment if the state is same. So in case I change project from NYC to different part of NY, Do I still need to file an amendment?

    I have been just informed that for H1 candidates who are in Tri-state (NY, NJ, PA), they do not need to file an amendment in case they are moving from these 3 states. Is this valid?
     
  16. Ron Gotcher

    Ron Gotcher Attorney at Law

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    The LCA controls. If you move to a different Metropolitan Statistical Area, significantly change your job duties, or work for a different third party client, you need both a new LCA and an amendment. If you move within the same MSA, but change your job duties significantly, or work for a different third party client, you need an amendment.
     
  17. Ak_

    Ak_ New Member

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    Got it. Thank you very much Ron.
     

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