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USCIS Issued Final Guidance on When to File an Amended or New H-1B Petition After Matter of Simeio Solutions, LLC

By Yingfei Zhou, Esq.

On July 21, 2015, USCIS issued the final guidance on when an employer must file an amended or new petition when the H-1B employee has changed or is changing his or her job location.

Except the situations listed below, the general requirement is that an employer must file an amended or new H-1B petition if the H-1B employee has changed or is changing his or her place of employment to a geographical area requiring a corresponding LCA to be certified to USCIS, even if a new LCA is already certified by the U.S. Department of Labor and posted at the new work location. Once an employer properly files the amended or new H-1B petition, the H-1B employee can immediately begin working at the new place of employment. The employer does not have to wait for a final decision on the amended or new petition for the H-1B employee to start work at the new location.

Exceptions when an employer does NOT need to file an amended petition are as follows:

  1. A move within an “area of intended employment”: If an employer’s H-1B employee is simply moving to a new job location within the same metropolitan statistical area, a new LCA is not generally required, and without material changes in the terms and conditions of employment the employer does not need to file an amended or new H-1B petition. However, the employer must still post the previously obtained LCA in the new work location.

  1. Short-term placement: If an employer is placing an H-1B employee at a new worksite for less than 30 days, and in some cases 60 days (where the employee is still based at the “home” worksite), the employer does not need to obtain a new LCA or file an amended or new H-1B petition provided there are no material changes in the terms and conditions for the H-1B worker’s employment.
  1. Non-worksite locations: If H-1B employees are only going to a location to attend conferences, seminars, or spend little time at any one location, or if the travel is on a casual, short-term basis (i.e. not exceeding 5 consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).

If an employer’s H-1B employee moved to a new place of employment not covered by an existing, approved H-1B petition on or before April 9, 2015, the employer may choose to file an amended or new petition by January 15, 2016, but such filing is not required, and USCIS will generally not revoke or deny the petition solely based upon a failure to file an amended or new petition.

If an employer’s H-1B employee moved to a new place of employment not covered by an existing, approved H-1B petition after April 9, 2015 but before August 19, 2015, the employer MUST file an amended or new H-1B petition by January 15, 2016. If the employer does not file before January 15, 2016, the employer will be out of compliance with DHS regulations and the employer’s current H-1B petition approval will be subject to a notice of intent to revoke and the employee may be found to not be maintaining his or her H-1B status.

If an employer’s H-1B employee moved to a new place of employment not covered by an existing, approved H-1B petition on or after August 19, 2015, the employer MUST file an amended or new H-1B petition before an H-1B employee starts working at a new place of employment not covered by an existing, approved H-1B petition.

In cases where the amended or new H-1B petition is denied, but the original petition is still valid, the H-1B employee may return to the old place of employment covered by the original petition as long as the H-1B employee is able to maintain valid status at the original place of employment.

If you would like us to help determine whether an amended or new H-1B petition is required in your specific situation, please feel free to contact our office.