Service Center Directors                        Office of Programs
        Director, Service Center Operations             (HQPGM)
        District Directors
        Officers-in-Charge

        The purpose of this memorandum is to recap the current Service
position regarding the filing of amended petitions within the H-1B
classification. This information was previously furnished to the
field in a memorandum signed by then Executive Associate
Commissioner for Operations, James J. Hogan [CO 214h-C/CO 214L-C
dated October 22, 1992].
 
        This memorandum provides general policy guidelines relating to
the requirements for the filing of amended or new petitions for H
nonimmigrant petitions. As stated in the relating regulation, an
amended petition must be filed when there is a material change in
the terms and conditions of employment which affect the
beneficiary's eligibility for the H-1B classification. The amended
petition procedure was not devised as an avenue to advise the
Service of minor, immaterial changes in the conditions of the
alien's employment which do not affect the alien's eligibility for
the classification. Petitioners should apprise the Service of
these minor, immaterial changes when applications for extensions of
the beneficiary's stay are filed.

        When a beneficiary is transferred from one United States
employer to another United States employer, a new petition must
always be filed by the new employer. This procedure, among other
things, insures that the new employer is liable for the alien's
return transportation abroad and that the new employer obtains a
labor condition application relating to the occupation.

        When a beneficiary is transferred from one entity to another
entity within the same organization, a new or amended petition
should be filed if the new entity becomes the beneficiary's United
States employer as defined in 8 CFR 214.2(h)(ii)(4). The mere


Page 2
Service Center Directors
Director, Service Center Operations
District Directors
Officers-in-Charge

transfer of the beneficiary to another work site, in the same
occupation, does not require the filing of an amended petition,
provided the initial petitioner remains the alien's employer and,
provided further, the supporting labor condition application
remains valid. An amended H-1B petition must be filed in a
situation where the beneficiary's place of employment changes
subsequent to the approval of the petition and the change
invalidates the supporting labor condition application.

        An amended or new petition need not be filed when the
petitioner merely changes its name, provided that the remaining
terms and conditions of the alien's employment remain the same. The
petitioner should, however, advise the Service of the name change
if and when it files to extend the alien's stay.

        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. See section 212(n) of the Act and corresponding
regulations.

        When the beneficiary's employer merges with another firm to
create a third entity which will subsequently employ the
beneficiary, a new or amended petition must be filed since the
merger has created a new legal entity, and therefore, a new
employer. This circumstance is distinguished from a change in
ownership which does not create a new entity.

        A change of the alien's duties from one specialty occupation
to another specialty occupation requires the filing of an amended
petition. For example, an alien physician admitted to the United
States to teach or conduct medical research must have an amended
petition filed in his/her behalf in order to provide clinical care.
Whether a change in duties rises to the level of a change in
specialty occupation depends on the specific circumstances of each
case.


Page 3
Service Center Directors
Director, Service Center Operations
District Directors
Officers-in-Charge

        Contact John W. Brown, Headquarters Adjudications, at (202)
514-5014, for additional information.

T. Alexander Aleinikoff
Executive Associate Commissioner


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