Generally, a company needs to file an amended petition for their employee whenever there are “material changes” in employment, such as a change in corporate relationships, or a change in employment (job duties, job requirements, job location). In most cases, the change must be reported by filing an amended petition with the government when it happens, although it is not always practical to do so.
The risks of not reporting these changes right away was highlighted recently when a client presented his L-1A amendment petition at U.S. Customs and Border Protection (CBP) upon reentry to the U.S. from Canada. The individual had changed positions within the same company in August 2018 without notifying us. When the individual changed positions, he also moved into a different department; therefore, an amendment to his L-1A classification was necessary. Since he presented his amendment documents more than six months after the position change, he was questioned more extensively by the CBP Officer about the delay in reporting the change. The Officer also stated that a delay in reporting a change could result in charges of fraud and restricted entry into the U.S. in the future since he had used old documents to travel into the United States in the meantime.
The standard for amending differs from one nonimmigrant classification to the next. The following is a sampling of nonimmigrant visa classifications and when an amendment is required under each:
- L-1 (not under a Blanket Certification): a material change in employment, including a 50% change in duties or a change in location of previously approved classification.
- H-1B and E-3: a material change in employment, including a change in worksite location outside of the metropolitan statistical area (MSA) or any other change that would require certification of a new Labor Condition Application.
- TN: any change in employment that may affect eligibility under the TN visa classification, such as transfer to a separately incorporated subsidiary or affiliate of the original petitioning employer or a job change.
- E-1/E-2: fundamental change in the employer’s basic characteristics, such as, but not limited to, a merger, acquisition, or major event which affects the treaty investor or employee’s previously approved relationship with the organization or a job change.
In our recent example involving an L-1 under a Blanket Certification, if an individual is reassigned to an entity that is already listed on the Blanket OR if the individual changes position within the same entity, it is imperative to strategize on whether an amendment of the previously approved L-1 classification is necessary. As border officials are now coached to be aware of this issue and are raising the timeliness of amendment filings, it is in the best interest of the company and its employees to discuss all position changes for foreign nationals with Grzeca Law Group to assess whether an amendment is necessary.