Prompted by a recent decision of the Administrative Appeals Office (AAO), on May 21, 2015, U.S. Citizenship & Immigration Services (CIS) issued guidance clarifying that an amended H-1B petition is required when the H-1B employee’s work location will change to a location outside the metropolitan statistical area or area of intended employment listed in the original Labor Condition Application (LCA) and H-1B petition.
The CIS considers such changes in work location to be “material”, because work in a new metropolitan statistical area may impact the prevailing wage or actual wage the employer is required to pay the H-1B employee. CIS regulations require an amended petition when such material changes occur.
The CIS also confirmed that an amended petition is not required every time an employee will travel to a new location or even work temporarily at a new location. Specifically, in accordance with DOL regulations regarding worksites and short-term placements, an amended H-1B petition would not be required in the following circumstances:
- When the employee will move to a location within the same metropolitan statistical area;
- When an employee’s temporary placement at a location meets the requirements for “short term placements” under DOL regulations;
- When an employee will travel to a location that does not constitute a “worksite” within the meaning of specific DOL regulations.
Employers should notify their Foster immigration attorney when an H-1B employee will have a new or additional worksite than the worksite listed in the original LCA and H-1B petition. Even locations within the same metropolitan statistical area are likely to require a new LCA posting at the new worksite, even if an amended H-1B petition is not required.
Additionally, for consultants and other types of roles involving extended visits to client sites, even a client site or third-party site may be considered a new worksite under DOL regulations. Accordingly, employers should contact Foster to determine whether placement of an H-1B employee offsite, even temporarily, may require an amended H-1B petition or trigger other regulatory requirements.
Employers should instruct their H-1B employees to notify their Human Resources Representative and their Foster immigration attorney whenever they will perform services offsite for more than five consecutive workdays, or whenever their work takes them to another metropolitan statistical area for a total of more than 30 days in a given year. Even if an amended petition is not required, additional regulatory requirements may apply.
The CIS has confirmed that the agency will allow a 90-day “grace” period through August 19, 2015, for employers to file amended H-1B petitions on behalf of individuals that have already been moved to worksites requiring an amended petition. After August 19th, those individuals requiring an H-1B amendment will no longer be maintaining valid H-1B status unless an amendment is filed. Accordingly, to avoid potential penalties in the event of CIS worksite visits or other enforcement initiatives, employers should contact their Foster immigration attorney now to initiate any required H-1B amendment process. Failure to act could subject both the employer and employee to adverse action, including petition revocation and/or a break in the employee’s lawful status and employment authorization.