U.S. employers that employ foreign nationals in H-1B nonimmigrant status are aware that H-1B petition approvals are location-specific, and require the filing of a Labor Condition Application (“LCA”) that lists each anticipated work location. For years, employers that move H-1B workers to different work locations post-H-1B approval have relied on prior non-binding U.S. Citizenship and Immigration Services (“USCIS”) guidance suggesting that employers could, in lieu of filing an H-1B amendment petition, file a new LCA and post it at the new worksite before employment begins at that new work location.
Recent developments have made it clear that this practice is no longer acceptable. On April 9, 2015, the USCIS’ Administrative Appeals Office (“AAO”) issued a precedent decision--Matter of Simeio Solutions, LLC (“Simeio Solutions”)-- which holds that a change in employment location is a “material change” to the employee’s terms and conditions of employment which requires the filing of an H-1B amendment petition.
On May 21, 2015, the USCIS released draft post-Simeio Solutionsguidance to employers. In its draft guidance, the USCIS confirmed that the holding in Simeio Solutions “represents the USCIS position that employers are required to file an amendment petition before placing an H-1B employee at a new worksite.” The USCIS advised that while it will not immediately take adverse action against employers that have relied on prior guidance, it now expects employers to file H-1B amendment petitions to reflect any changes in work locations no later than August 19, 2015. The USCIS warns employers that do not file amendment petitions for affected H-1B employees by August 19, 2015 “will be out of compliance with USCIS regulations and policy and thus subject to adverse action.”
Not every change in work location requires the filing of an H-1B amendment petition. For example, moving an H-1B employee to a new worksite within the same “metropolitan statistical area” (“MSA”) covered by the H-1B employee’s existing approval does not require the filing of an H-1B amendment petition, but does still require posting of the original LCA at the new work location. Also, immigration regulations permit H-1B employees to work at work locations not listed on the LCA for up to 30 days each year (and up to 60 days each year if the employee still maintains a “base” at the original work site). Further, travel to locations for developmental training, or for recurring visits to certain locations that are “peripatetic in nature,” do not require filing H-1B amendment petitions because those locations are considered to be “non‑worksites.”
The USCIS will accept comments on its draft guidance for a limited period of time. Nevertheless, given the USCIS’ clear mandate in its draft guidance, employers of H-1B workers should now immediately assess whether their H-1B employees are working at the same worksite(s) identified on their H-1B petitions--and consider whether there have been any changes to their H-1B employees’ terms and conditions of employment that could be considered “material changes”--to determine whether any H-1B amendment petitions are required. Employers that regularly move their H-1B employees to new work locations must now implement new (or strengthen existing) protocols to “flag” when a change in worksite is contemplated for an H-1B employee to allow sufficient time to file an H-1B amendment petition before the move occurs.