Visa Lawyer Blog
USCIS released guidance on May 22, 2015 to clarify Administrative Appeal Office (AAO)’s precedent decision on April 9, 2015 on Matter of Simeio Solutions, LLC that all employers must file amended H-1B petitions when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required due to a change in the H-1B worker’s worksite location.
When Must File an Amended Petition
In Matter of Simeio, AAO ruled than a material change occurs when an H-1B employee moves to a new location outside the geographic area of the LCA that was originally filed for the employee’s H-1B petition. Whenever there is a material change, an amended H-1B petition is required. Employers whose H-1B employees changed locations before or after this April 9 ruling to outside of the geographic area covered by the previous LCA are now all required to file amended H-1B petitions.
Exceptions apply if 1) your H-1B employee is moving to a new job location within the same metropolitan statistical area (MSA) or area of intended employment, 2) it is a short term placement for up to 30 days and in some cases 60 days where the employee is still based at the original location, 3) the employee is only going to a non-worksite location, such as participating in conferences, seminars, or occasional travels for short periods.
If the amended H-1B petition is denied, but the original petition is still valid, USCIS allows the H-1B employee to return to the worksite covered a prior H-1B petition that remains valid.
Employers may file another amended H-1B petition while an amended H-1B petition is pending as long as every amended petition meets the requirements for the H-1B classification and any requests for extensions of stay. If the H-1B employee’s status expires while successive amended petitions are pending, the denial of any petition or request to amend or extend status will result in the denial of all successive requests to amend or extend status.
August 19 is the Deadline for Pre-May 21 Relocations
Employers who have not filed amended H-1B petitions for those employees must file no later than August 19, 2015. For those employers who have not yet filed amended H-1B petitions for workplace location changes that occurred after the ruling but before May 21, 2015 will also have until August 19, 2015 to file an amended petition. For moves to a new geographic location after May 21, 2015, the employer must obtain a new LCA from the Department of Labor and file an amended H-1B petition before relocating the H-1B employee.
Failure to file by the deadline will result in both the employer and H-1B employee being out of compliance and subject to adverse action.
Once the employer files the amended petition, the H-1B employee can immediately begin to work at the new location. You do not have to wait for a final decision on the amended petition for your H-1B employee to start work at the new location.
Tips for Employers
This ruling affects a lot on the employers in the consulting industry, where frequent employee relocations are necessary. Those employers must be especially careful in tracking their H-1B employees’ planned moves and make sure a new LCA and amended H-1B petition are filed before August 19, 2015 for pre-May 21 relocations and before they start work at a new location for post-May 21 relocations.
If you have any questions about H-1B worksite changes, please feel free to contact out firm for a consultation.