Why it matters
In April, the U.S. Citizenship and Immigration Services' (USCIS) Administrative Appeal Office (AAO) issued a precedential opinion setting forth an employer's obligation to file an amended petition when a geographical change in an H-1B employee's worksite occurs, indicating that the requirement would have retroactive application. However, the AAO released final guidance on the decision in late July offering some relief for employers concerned about agency action. While the guidance upholds the requirement to file an amended H-1B petition and Labor Condition Application for a change in worksite location, the agency said it would not pursue employers for past failures to file the necessary paperwork—although the USCIS will not cancel any actions that were initiated in the interim. Employers that want to file an amended petition for workers who moved prior to the date the decision was issued on April 9 have the option to do so. If an employee moved after April 9 and before August 19, employers have until January 15, 2016 to file. And if a H-1B employee moves to a new location after August 19, employers are required to file an amended petition before the employee starts work at the new location, the USCIS reiterated.
Under what circumstances does an employer need to file an amended H-1B petition?
Simeio Solutions LLC—an information technology services provider—learned the hard way that a worksite change constitutes a material change to the terms and benefits of employment specified in the original petition in a decision handed down by the U.S. Citizenship and Immigration Services' (USCIS) Administrative Appeal Office (AAO) in April.
The company filed a Petition for a Nonimmigrant Worker (Form I-129) to classify a beneficiary as an H-1B temporary nonimmigrant worker pursuant to the Immigration and Nationality Act. Included in the petition: the necessary Department of Labor (DOL) Labor Condition Application for Nonimmigrant Workers (LCA).
The Form I-129, the LCA, and an accompanying letter of support all attested that the beneficiary would be employed at a Simeio facility in Long Beach, California, working on an in-house project for a specific client with an annual salary of $50,232. The company did not include an itinerary, nor did it list other worksites. The petition was approved.
When USCIS officers later conducted a site visit at the Long Beach facility where the beneficiary was supposed to be working, they discovered that the address had been abandoned two months after the start date of the beneficiary's H-1B employment. Further investigation revealed that the beneficiary was assigned to Simeio's Los Angeles office.
The California Service Center Director (Director) responded with a notice of intent to revoke the approval of the petition. In response, the company submitted a new LCA that provided two worksites for the beneficiary: Camarillo, California, and Hoboken, New Jersey.
These changes in the beneficiary's places of employment constituted a material change to the terms and conditions of employment as specified in the original petition, the Director concluded. Because Simeio failed to file an amended petition with the LCA, the Director revoked the petition.
The AAO affirmed on April 9.
A change in the geographical location of employment of a beneficiary constitutes a material change in the terms and conditions of employment necessitating an amended or new H-1B petition with the corresponding LCA, the agency said. Because Simeio neglected to file the necessary paperwork, the AAO affirmed the Director's decision to revoke the petition.
"Having materially changed the beneficiary's authorized place of employment to geographical areas not covered by the original LCA, the petitioner was required to immediately notify USCIS and file an amended or new H-1B petition, along with a corresponding LCA certified by DOL, with both documents indicating the relevant change," the AAO wrote.
In an attempt to clarify the situation for employers, the USCIS issued guidance on when to file an amended H-1B petition in the wake of the Simeio decision.
Employers must file an amended H-1B petition if the employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) or an "area of intended employment" covered by the existing approved H-1B petition—even if a new LCA is already certified and posted at the new location, the agency said.
The USCIS noted that the H-1B employee can immediately begin to work at the new location once the amended petition has been filed, with no need to wait for a final decision on the amended petition.
Not all moves will trigger the need to file an amended petition, however. A short term placement (lasting up to 30 days) or visits to non-worksite locations for a management conference or staff seminar, for example, do not require an amended petition. A move within a MSA similarly does not require new paperwork, although the LCA must be posted in the new work location.
The agency also established three categories of filing requirements based on timing. For H-1B workers that changed worksite locations before the Simeio decision was issued on April 9, the "USCIS will generally not pursue new adverse actions … solely based upon a failure to file an amended or new petition regarding that move after July 21, 2015," the agency wrote. Adverse actions already commenced prior to that date will continue.
A safe harbor period was established for employers to file amended or new petitions if they wish to comply with the Simeio decision, but only until January 15, 2016. Employees that moved to a new place of employment between April 9 and August 19, 2015 have until the January 15 date to file an amended petition or "be out of compliance with [Department of Homeland Security] regulations and the USCIS interpretation of the law, and thus subject to adverse action," the agency cautioned, as will the H-1B employee.
Finally, if the change in the place of employment occurs after August 19, the employer must file an amended or new petition in line with the Simeio decision.
To read the USCIS guidance, click here.