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INS ISSUES GUIDANCE ON WHEN H-1B PETITIONS NEED TO BE AMENDED
On August 21, 1996, Alexander Aleinikoff, Executive Association Commissioner of the Immigration and Naturalization Service, issued a memorandum advising employers when it is necessary to file an amended petition for workers holding H-1B status. The general INS position is that the application needs to be amended when there is a "material change in the terms and conditions of employment which affect the alien's eligibility for the classification." The INS still is to be advised of minor, immaterial changes, but only when applications for extension are made. 
Applicants transferred from one US employer to another are always required to submit a new H-1B petition. Those transferred from one entity to another within the same organization need to file a new or amended petition if the new entity becomes the worker's employer. But the mere transfer of a worker to another work site does not require an amended H-1B petition if the employer remains the same and the supporting labor condition application is still valid. If a new labor condition application needs to be filed, the H-1B petition must be amended. 
Employers who change their names do not need to file amended petitions for their workers as long as everything else in the petition remains valid and the employer notifies the INS of the name change the next time it files a new H-1B petition or extends the stay of one of its H-1B workers. 
One of the more confusing issues regarding H-1B amendments is what to do when the employer's ownership structure changes. According to the Aleinikoff memo, "Changes in the ownership structure of the petitioning entity generally do not require the filing of a new or amended petition if the petitioning entity continues to remain the alien beneficiary's employer, provided the new owner(s) of the firm assumes the previous owner's duties and liabilities, including those of the prior owner relating to the filing of the labor condition application." This would not be true, however, if two companies merge to create a new company. In this case, a new or amended petition must be filed for an H-1B worker. 
In the case where an H-1B worker's duties change from one specialty occupation to another, a new or amended application must be filed. Whether changes in a job description rise to the level of being considered a change in occupation would need to be determined on a case be case basis. 
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