Job Changes

H1-B Visa Job Changes or Promotions

Routine promotions are generally not deemed material, as they do not directly impact the alien’s continued eligibility for H-1B classification. Accordingly, the Service has held that a promotion to a higher position within the same occupation would not normally require the filing of an amended petition, provided that the alien is required to utilize the same academic training as was required in the former petition. However, the INS has also stated that [i]f the alien’s job duties change to the extent that the duties are no longer those of the position identified on the original petition and the supporting LCA, a new or amended petition must be filed.

Similarly, a salary increase which is commensurate with a promotion within the same occupation would not generally be a material change and thus would not require a new petition or a new LCA. (In the Service correspondence discussing the promotion issue noted above, the attorney’s inquiry indicated an increase in pay from $27,000 to $35,000.) However, the employer would have to develop and maintain documentation explaining the changes to show that, after such salary adjustment, the wages paid to the H-1B nonimmigrant are at least the greater of the adjusted actual wage or the prevailing wage for the occupation in the area of intended employment. Furthermore, if in determining the prevailing wage the employer relied on a published survey or other source data that provided various levels of wage based on the level of skill, the employer must adjust the rate of pay in accordance with the appropriate level for the new petition.

A change to an occupation not listed on the LCA invalidates the LCA. In this regard, a promotion that results in the application of a new Occupational Code (such as a move from professional employment to a management level position) may constitute a change in occupation. When the new job is in a different specialty occupation, INS will deem this to be a material change. The INS Central Office memoranda and the proposed regulations make it clear that a change in duties from one specialty occupation to another necessitates the filing of an amended petition.

Whether a change in duties rises to the level of a change in specialty occupation depends on the specific circumstances of each case. In the example provided in the Aleinikoff memorandum, if an alien physician is admitted to the United States to teach or conduct medical research and then seeks to provide clinical care, an amended petition must be filed.

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