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H-1B Employment Limitations and Changes

H-1B status is "employer specific." An H-1B employee is only authorized to work for the employer that is sponsoring his/her H-1B petition. An approved H-1B authorization for one employer does not extend to other employers. For example, an individual in H-1B status at another university cannot simply transfer to UMMC and use the H-1B authorization obtained at the other institution to work at UMMC. UMMC must file a new H-1B petition on behalf of the H-1B.

Changing H-1B employers

The H-1B portability provision allows an H-1B worker to transfer to another employer and begin working for the new employer before the new employer's H-1B petition has been approved. This provision can benefit UMMC sponsors who need their H-1B employees to start work as soon as possible. Following are the steps that must be taken to ensure portability for an H-1B nonimmigrant transferring to UMMC:

  • UMMC must file an H-1B petition on behalf of the transferring employee before he/she terminates employment with the current employer. This will ensure that the H-1B candidate will remain in a lawful period of stay during the transfer.
  • When the Office of International Services receives confirmation that U.S. Citizenship and Immigration Services (USCIS) has officially received UMMC's petition, the H-1B worker can immediately begin employment.
  • Although the H-1B worker is considered to be lawfully employed during this period, UMMC's H-1B petition must eventually be approved by USCIS. When the petition is approved, the worker will be given his/her official documents authorizing employment at UMMC.

Changes in the terms/conditions of employment

If there is a "substantial" change in the terms or conditions of a UMMC H-1B worker's employment, an amended petition must be filed with USCIS to notify them of the changes. Terms and conditions of employment include things like job title, job duties, job location and salary. The H-1B regulations do not define "substantial," so the Office of International Services with assistance from the sponsoring department must determine whether or not an amended petition is required. For example, a $10,000 salary increase given to an H-1B staff employee would certainly be substantial and may warrant an amended petition, but the same increase given to an H-1B physician would likely be considered a normal market adjustment and not require an amended petition. UMMC departments frequently promote employees to faculty positions. In some instances, the duties of an employee who is promoted to a faculty position may not significantly change. For example, Postdoctoral Research Fellows may be promoted to Instructors without a substantial change in job duties, although they may receive a nominal pay increase. In these situations, an amended petition is normally not required. Minor changes in employment do not require an amendment and can be addressed with USCIS at the time that an H-1B employee's authorization is extended.

If a change in the terms or conditions of H-1B employment for an H-1B worker is being considered, a Determination of Necessity for H-1B Amended Petition form should be completed. The OIS will review the form and determine if an amended petition will be required. Substantial changes in H-1B employment should not commence until an amended petition has been filed with USCIS. UMMC applies the principle used for H-1B portability cases when filing amended petitions, i.e., the amended petition is filed prior to the change in terms/conditions of employment, and the change can commence once the OIS receives a Form I-797 receipt notice from USCIS.